19-3678 U.S. v. Kohlmeier

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of June, two thousand twenty-one.

PRESENT: Guido Calabresi, Steven J. Menashi, Circuit Judges, Denise Cote, * Judge. ____________________________________________

United States of America,

Appellee,

v. No. 19-3678

John Kohlmeier,

Defendant-Appellant. ____________________________________________

*Judge Denise Cote of the United States District Court for the Southern District of New York, sitting by designation. For Appellee: Tiffany H. Lee, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York.

For Defendant-Appellant: James S. Wolford, Gallo & Iacovangelo, LLP, Rochester, New York.

Appeal from a judgment of the United States District Court for the Western

District of New York (Siragusa, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant John Kohlmeier pleaded guilty to a single count of

knowing enticement of a minor in violation of

(b), for which he

was sentenced principally to 300 months’ imprisonment. He appeals from the

judgment arguing that the district court impermissibly double-counted when

calculating his Guidelines sentence range by applying overlapping enhancements

to his offense level. We disagree and affirm the judgment and sentence imposed

by the district court. We assume the parties’ familiarity with the underlying facts,

procedural history, and arguments on appeal.

2 I

Kohlmeier and co-defendant Bonnie Hughes sexually abused a 10-year-old

girl in 2018. On April 2, 2019, Kohlmeier waived indictment and pleaded guilty to

a single count of knowing enticement of a minor in violation of

(b).

In the written plea agreement, the parties agreed to the application of specific

offense characteristic enhancements. As relevant to this appeal, these

enhancements included a two-level enhancement pursuant to U.S.S.G.

§ 2G1.3(b)(2)(B) because the defendant unduly influenced the minor to engage in

prohibited sexual activity and a two-level enhancement pursuant to U.S.S.G.

§ 2G1.3(b)(3)(A) because the offense involved the use of a computer.

Before sentencing, the Probation Office prepared a Presentence

Investigation Report that applied an eight-level increase to Kohlmeier’s offense

level pursuant to U.S.S.G. § 2G1.3(b)(5) because the offense involved a minor

under the age of 12. 1 This enhancement was not included in the plea agreement.

Kohlmeier objected to the application of § 2G1.3(b)(5), arguing that its application

1 U.S.S.G. § 2G1.3(b)(5) states in relevant part: If … the offense involved a minor who had not attained the age of 12 years, increase by 8 levels.

3 would constitute unconstitutional double-counting when applied together with

§ 2G1.3(b)(2)(B) 2 and § 2G1.3(b)(3)(A). 3

The district court disagreed and, applying the enhancement in § 2G1.3(b)(5),

calculated that the resulting advisory Guidelines sentence was life imprisonment.

The district court imposed a sentence consisting principally of 300 months’

imprisonment. Kohlmeier timely appealed.

II

Kohlmeier’s only argument on appeal is that the district court engaged in

unconstitutional double-counting when it applied § 2G1.3(b)(5)—which enhances

the offense level if the offense involved a minor under 12 years of age—together

with § 2G1.3(b)(2)(B) and § 2G1.3(b)(3)(A)—which enhance the offense level if the

defendant exerted undue influence on a minor and if the offense involved the use

of a computer, respectively. He argues that because § 2G1.3(b)(2)(B) and

2 U.S.S.G. § 2G1.3(b)(2)(B) states in relevant part: If … a participant otherwise unduly influenced a minor to engage in prohibited sexual conduct, increase by 2 levels. 3 U.S.S.G. § 2G1.3(b)(3)(A) states: If the offense involved the use of a computer or an interactive computer service to … persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in prohibited sexual conduct … increase by 2 levels.

4 § 2G1.3(b)(3)(A) are applicable only to sex offenses involving minors, an

additional enhancement for a crime against a minor under the age of 12 is

impermissibly duplicative. We disagree.

We review a district court’s application of the Guidelines de novo. United

States v. Conca,

(2d Cir. 2011). “Impermissible double counting

occurs when one part of the Guidelines is applied to increase a defendant’s

sentence to reflect the kind of harm that has already been fully accounted for by

another part of the Guidelines.” United States v. Watkins,

(2d Cir.

2012) (alterations omitted); see United States v. Johnson,

(2d Cir.

2000). Conversely, “when the challenged part of the Guidelines aims at different

harms emanating from the same conduct, there is no impermissible double

counting.” Watkins,

(internal quotation marks and alteration

omitted). Therefore, “[e]nhancements are not duplicative when they reflect

different facets of the defendant’s conduct.”

.

Here, each enhancement “reflect[s] different facets of [Kohlmeier’s]

conduct.”

. Section 2G1.3(b)(5) reflects the seriousness of sex offenses

involving a child under the age of 12. See United States v. Bowden,

(11th Cir. 2011) (noting that “[t]he eight-level enhancement reflects the

5 Sentencing Commission’s judgment that a sex offense covered by § 2G1.3 that

involves a child under the age of twelve … is more serious” and citing provisions

of the U.S. Code that impose higher penalties for sex offenses involving children

under the age of 12). That an offense involved a minor does not make it duplicative

of the enhancement for children under the age of 12 because Kohlmeier could have

received enhancements pursuant to both § 2G1.3(b)(2)(B) and § 2G1.3(b)(3)(A)

without receiving an enhancement pursuant to § 2G1.3(b)(5) had the victim not

been under the age of 12. United States v. Arbaugh,

(4th Cir. 2020)

(noting that subsections to § 2G1.3 focus on aggravating factors other than that the

offense involved minor victims).

Indeed, in addition to applying only to offenses that involve minors,

§ 2G1.3(b)(2)(B) and § 2G1.3(b)(3)(A) reflect other facets of the defendant’s

conduct unrelated to the victim’s age. First, § 2G1.3(b)(3)(A) applies only when the

offense involves the use of a computer in the commission of the sex offense. This

court has previously held in United States v. Johnson that the computer-use

enhancement in § 2G1.3(b)(3)(A) is not duplicative of an enhancement for

trafficking in child-pornography because “[o]ne can traffic in child pornography

without using a computer much like one could commit a robbery without the use

6 of a gun.”

. Applying the same principle, Kohlmeier could have

“persuade[d], induce[d], entice[d], coerce[d], or facilitate[d] the travel of” a victim

under the age of 12 “to engage in prohibited sexual conduct,” § 2G1.3(b)(3)(A),

without the use of a computer. Therefore, § 2G1.3(b)(3)(A) targets a separate facet

of Kohlmeier’s offense conduct—the use of a computer to facilitate the crime—and

is not duplicative of § 2G1.3(b)(5).

The same is true of § 2G1.3(b)(2)(B). “By its plain terms, § 2G1.3(b)(2)(B)

focuses on a different aggravating factor (undue influence) than … § 2G1.3(b)(5)’s

enhancement (minor victim under the age of twelve).” Arbaugh,

.

Although the commentary to § 2G1.3(b)(2)(B) considers age, explaining that some

degree of undue influence can be presumed because of a “substantial difference in

age,” see § 2G1.3(b)(2)(B) cmt. n.3, age disparity is only one indicator of the

presence of undue influence in the commission of the crime. Id. Returning to the

principle articulated in Johnson, Kohlmeier could have unduly influenced a minor

above the age of 12 as much as he could have unduly influenced a minor below

the age of 12. Thus, although both § 2G1.3(b)(2)(B) and § 2G1.3(b)(5) apply only to

sex offenses against minors, each implicates different facets of the offense and are

not duplicative.

7 In sum, the district court did not unconstitutionally double-count by

applying enhancements to Kohlmeier’s offense-level pursuant to § 2G1.3(b)(5),

§ 2G1.3(b)(2)(B), and § 2G1.3(b)(3)(A).

* * *

We have considered Kohlmeier’s remaining arguments, which we conclude

are without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

8