USCA4 Appeal: 22-4131 Doc: 71 Filed: 06/08/2023 Pg: 1 of 22

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4131

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TROY GEORGE SKINNER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:19-cr-00019-MHL-1)

Argued: March 8, 2023 Decided: June 8, 2023

Before GREGORY, Chief Judge, NIEMEYER, and RICHARDSON, Circuit Judges.

Affirmed by published per curiam opinion.

ARGUED: Laura Jill Koenig, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia; Robert J. Wagner, ROBERT J. WAGNER, PLC, Richmond, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Brian R. Hood, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. USCA4 Appeal: 22-4131 Doc: 71 Filed: 06/08/2023 Pg: 2 of 22

PER CURIAM:

Troy George Skinner, a citizen and resident of New Zealand, carried on an online

relationship with a thirteen-year-old girl in Virginia that involved several sexually explicit

video calls. After law enforcement discovered numerous images and video recordings

from those calls on Skinner’s cell phone and computer, a federal grand jury charged

Skinner with nine counts of producing child pornography in violation of

(a). He entered a conditional guilty plea to one of the counts and was sentenced to

twenty-one years in prison.

Skinner challenges both his conviction and sentence on appeal. He first argues that

his conviction involves an impermissible extraterritorial application of § 2251(a) because

he was in New Zealand when the unlawful images and videos were produced. Second, he

contends that his conviction violates the Fifth Amendment Due Process Clause because he

lacked adequate notice that the victim was underage. Third, and finally, he challenges his

sentence on the grounds that the district court improperly applied a two-level enhancement

for offenses involving “sexual contact.” Finding no error, we affirm Skinner’s conviction

and sentence.

I.

A.

In December 2017, Skinner began communicating with a girl identified as “R.D.”

on Steam, an online gaming and messaging platform. At the time, R.D. was thirteen years

old and lived in Goochland, Virginia, and Skinner was twenty-four and lived in New

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Zealand. Skinner and R.D. soon moved their conversations to another online platform,

Discord, which allows users to exchange typed messages and participate in live-streamed

video calls on their computers and cell phones.

During their early online conversations, Skinner truthfully told R.D. that he was

twenty-four, and R.D. falsely claimed that she was sixteen. R.D. also mentioned that she

was home-schooled. In messages exchanged on January 7, 2018, Skinner told R.D. he

wanted to be her boyfriend, to which R.D. responded: “You wouldn’t mind being called a

pedo?” J.A. 635. In another exchange the same day, they discussed the age of consent in

the United States and New Zealand. R.D. wrote that she was “legally a kid” because she

was under eighteen and that, in the United States, “[y]ou can’t be with a minor if you’re

over 21 I think.” J.A. 635–36. Skinner responded that the age of consent in New Zealand

is sixteen. R.D. replied, “You’d get thrown in jail if it was here.” J.A. 636.

Skinner and R.D.’s online interactions turned sexual in early January 2018. In

addition to exchanging nude photographs of each other, they began having online sex

during live video calls using their computers. During those calls, Skinner and R.D. each

displayed their genitalia, touched themselves in suggestive ways, and masturbated on

camera. Without R.D.’s knowledge or consent, Skinner captured several screenshots and

video recordings of R.D. engaging in sexually explicit activity during those calls. At all

relevant times, Skinner was in New Zealand and R.D. was in Virginia.

In June 2018, R.D. ended her online relationship with Skinner and cut off all

communications with him. Later that month, Skinner traveled from New Zealand to

Goochland, Virginia. En route to R.D.’s house, Skinner stopped at a local Wal-Mart, where

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he purchased duct tape, a folding pocketknife, and pepper spray. When Skinner arrived at

the house, R.D.’s mother refused to allow him inside, at which point he tried to forcibly

enter the home by breaking through a glass door. After warning Skinner several times to

leave, R.D.’s mother fired a handgun at Skinner, wounding him in the neck. Local police

officers arrived on the scene shortly thereafter and arrested Skinner. In addition to the duct

tape, pocketknife, and pepper spray, police seized two cell phones from his person.

Forensic examination showed that the phones had been used to access Google Mail

accounts that contained pornographic images and videos of R.D.

In cooperation with U.S. authorities, law enforcement in New Zealand later seized

a laptop from Skinner’s apartment. Forensic analysis of the laptop uncovered 120 video

and 56 image files, most of which depicted child pornography involving R.D.

B.

In a September 2019 superseding indictment, a federal grand jury in the Eastern

District of Virginia charged Skinner with nine counts of producing child pornography (

(a)), one count of kidnapping and attempted kidnapping of a minor (

(a)(1), (d), and (g)), and one count of kidnapping and attempted kidnapping

(

(a)(1) and (d)).

In three separate motions, Skinner moved to dismiss the superseding indictment.

He raised several challenges to the indictment, two of which are relevant to this appeal.

First, he sought to dismiss the production-of-child-pornography counts for lack of subject

matter jurisdiction, arguing that § 2251(a) does not apply extraterritorially to cover his

conduct in New Zealand. Second, he argued the production-of-child-pornography counts

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violated his due process rights. He maintained that because he never had direct, in-person

contact with R.D., it was unconstitutional to subject him to § 2251(a)’s strict liability

standard regarding a minor’s underage status, and that he was at least entitled to a

reasonable-mistake-of-age defense.

The district court denied Skinner’s motions to dismiss. See United States v. Skinner,

(E.D. Va. 2021). It first held that § 2251(a) applies to extraterritorial

conduct and, even if it did not, that Skinner’s case represents a permissible domestic

application of the statute. Id. at 31. The court also rejected Skinner’s argument that the

§ 2251(a) charges violated the Due Process Clause because he had no way of knowing that

R.D. was underage. Id. at 45. It noted that the Fourth Circuit has held that § 2251(a) does

not require proof that the defendant knew the victim was underage, United States v. Malloy,

(4th Cir. 2009), and that the Supreme Court has endorsed the same

position in dicta, United States v. X-Citement Video, Inc.,

, 72 n.2 (1994). In

light of those decisions, the district court concluded that “a mistake of age defense is not

mandated by the Constitution.” Skinner, 536 F. Supp. 3d at 48. The court was also

unpersuaded by Skinner’s argument that the severity of the fifteen-year mandatory

minimum sentence for a § 2251(a) offense made it a due process violation to convict him

without proving that he knew R.D. was underage. Id. at 49–50. And, in any event, the

court found ample evidence in the record indicating that Skinner knew R.D. was no older

than sixteen and legally underage in the United States. Id. at 48–50.

Skinner then entered a conditional guilty plea to one count of producing child

pornography (Count 1 of the superseding indictment). Count 1 alleged that in January 2018,

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Skinner knowingly used a minor in Virginia “to engage in sexually explicit conduct for the

purpose of producing visual depictions of such conduct, and for the purpose of transmitting

a live visual depiction of such conduct.” J.A. 350. It specifically identified a video file that

showed R.D. engaging in sexually explicit conduct during a live video call in January 2018.

The plea agreement, which the district court accepted, permitted Skinner to appeal the court’s

rulings on his motions to dismiss, as well as the sentence the court imposed.

Skinner’s sentencing hearing took place in February 2022. The Government

objected to the fact that the presentence report (“PSR”) did not apply the two-level

Sentencing Guidelines enhancement for an offense involving “sexual contact.” U.S.S.G.

§ 2G2.1(b)(2)(A). Agreeing with the Government, the district court concluded that the

enhancement applied because R.D.’s masturbation during the video calls with Skinner met

the statutory definition of “sexual contact.” The enhancement increased Skinner’s total

offense level from 38 to 40. Based on this offense level and Skinner’s criminal history

category of I, the court held that the Guidelines range was 292 to 360 months’

imprisonment. After considering the

(a) sentencing factors, the court

imposed a downward variance sentence of 252 months (twenty-one years).

On the Government’s motion, the district court dismissed the remaining ten counts of the

superseding indictment. The court entered final judgment on February 18, 2022, and Skinner

timely appealed. We have jurisdiction pursuant to

and

.

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II.

When reviewing the denial of a defendant’s motion to dismiss an indictment, we

review the district court’s legal conclusions de novo and its factual findings for clear error.

United States v. Pasquantino,

(4th Cir. 2002). We also review de novo a

sentencing court’s application of an enhancement in the Sentencing Guidelines based on a

specific offense characteristic. United States v. Dugger,

(4th Cir. 2007).

III.

Skinner first argues that his conviction rests on an impermissible extraterritorial

application of § 2251(a) because he was in New Zealand when he committed the offense.

Whether a federal statute applies to conduct beyond the territorial boundaries of the United

States “is a matter of statutory construction.” 1 United States v. Ayesh,

(4th Cir. 2012). While “Congress has the authority to apply its laws, including criminal

statutes, beyond the territorial boundaries of the United States,”

(citation omitted), the

Supreme Court has long recognized a presumption that federal statutes do not apply

extraterritorially, see, e.g., Morrison v. Nat’l Austl. Bank Ltd.,

(2010).

A criminal statute rebuts this presumption and extends to extraterritorial conduct “only if

Congress clearly so provides.” United States v. Shibin,

(4th Cir. 2013).

1 Although Skinner frames the extraterritorial reach of a statute as a question of subject matter jurisdiction, the Supreme Court has clarified that it is a “merits question” that goes to “what conduct [the statute] prohibits.” Morrison v. Nat’l Austl. Bank Ltd.,

(2010). 7 USCA4 Appeal: 22-4131 Doc: 71 Filed: 06/08/2023 Pg: 8 of 22

We follow a two-step framework to decide questions of extraterritoriality. “The

first step asks whether the text of the relevant statute ‘provides a clear indication of an

extraterritorial application,’ sufficient to rebut the presumption against extraterritoriality.”

United States v. Harris,

(4th Cir. 2021) (quoting WesternGeCo LLC v.

ION Geophysical Corp.,

(2018)). If the statute fails to rebut that

presumption, we move to the second step, which “asks whether the case involves a

[permissible] domestic application of the statute.” WesternGeCo,

(internal quotation marks omitted). Usually, it is “preferable” for courts to address the first

step before proceeding to the second. RJR Nabisco, Inc. v. European Cmty.,

,

338 n.5 (2016).

A.

Turning to the first step, § 2251(a) does not apply extraterritorially. Section 2251(a)

does contain four references to “foreign commerce,” but such references cannot rebut the

presumption against extraterritoriality. See United States v. Elbaz,

(4th

Cir. 2022). And the statute contains no other indications of extraterritorial application. In

all relevant respects, § 2251(a) is no different than the wire-fraud statute we considered in

Elbaz. Just as the wire-fraud statute “lacks any affirmative statutory instruction that it

criminalizes purely extraterritorial conduct,” id., so too does § 2251(a).

In this regard, § 2251(a) is distinguishable from related statutes that expressly

prohibit the extraterritorial production of child pornography. One such statute, § 2251(c),

targets a defendant who “employs, uses, persuades, induces, entices, or coerces any minor

to engage in . . . any sexually explicit conduct outside of the United States, its territories

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or possessions, for the purpose of producing any visual depiction of such conduct,” if the

defendant intends for the depiction to be transported or actually transports it to the United

States.

(c) (emphasis added). Similarly, § 2260(a) criminalizes “[a]

person who, outside the United States, employs, uses, persuades, induces, entices, or

coerces any minor to engage in . . . any sexually explicit conduct for the purpose of

producing any visual depiction of such conduct or for the purpose of transmitting a live

visual depiction of such conduct,” with the intent that “the visual depiction will be imported

or transmitted into the United States.”

(a) (emphasis added). When

viewed alongside these provisions, § 2251(a)’s silence on overseas conduct reinforces our

conclusion that the statute does not rebut the presumption against extraterritoriality.

Thus, we must turn to the second step and ask whether this case involves a

permissible domestic application of § 2251(a).

B.

To determine whether a case involves a domestic application of a statute, we

identify the “focus” of the statute and ask “whether the conduct relevant to that focus

occurred in United States territory.” Id. A statute’s focus refers to “the object of the

statute’s solicitude—which can turn on the conduct, parties, or interests that it regulates or

protects.” Id. at 2138 (cleaned up). “If the conduct relevant to the statute’s focus occurred

within the United States, then the case involves a permissible domestic application” of the

statute, “even if additional and related conduct occurred abroad.” Harris,

(internal quotation marks omitted); see RJR Nabisco, 579 U.S. at 337.

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We conclude that the focus of § 2251(a) is the production of a visual depiction of a

minor engaged in sexually explicit conduct or the transmission of a live visual depiction of

such conduct.

(a). Skinner’s conviction stands as a permissible domestic

application of § 2251(a) because the conduct relevant to the statute’s focus occurred in

Virginia, where the visual depiction that forms the basis of Skinner’s conviction was

produced and transmitted.

1.

Our first task is to identify the focus of § 2251(a). To do so, we look to the text and

structure of the statute as well as any relevant legislative history. As a textual matter, the

statute’s focus is found within its “substantive elements,” which “primarily define the

behavior that the statute calls a violation of federal law” and “describe ‘the harm or evil the

law seeks to prevent.’” Elbaz,

(quoting Torres v. Lynch,

(2016) (cleaned up)). A violation of § 2251(a) occurs when the defendant “employs, uses,

persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit

conduct for the purpose of producing any visual depiction of such conduct or for the purpose

of transmitting a live visual depiction of such conduct.”2

(a). Thus,

2 In addition, § 2251(a) makes it unlawful to “transport[] any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in[] any sexually explicit conduct” for the purpose of producing a visual depiction or live video transmission of that conduct. This provision is not at issue in this case.

The statute also has jurisdictional elements, which require the Government to prove either that the depiction (1) “was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any (Continued) 10 USCA4 Appeal: 22-4131 Doc: 71 Filed: 06/08/2023 Pg: 11 of 22

§ 2251(a) has two substantive elements relevant to Skinner’s case: (1) the defendant

convinced a minor to engage in sexually explicit conduct (2) with the purpose of producing

or transmitting a visual depiction of that conduct.

We conclude that § 2251(a)’s focus is the production or transmission of the visual

depiction. What sets § 2251(a) apart from related statutes is that it prohibits the production

and transmission of a depiction of a child engaging in sexually explicit conduct. 3 See

United States v. Palomino-Coronado,

, 132–33 (4th Cir. 2015). The sexually

explicit conduct alone is not enough; there must be a depiction that is produced or

transmitted. See

That conduct is “the harm or evil the law seeks to prevent.” Elbaz,

.

This conclusion accords with this Court’s recent decision in United States v. Elbaz.

There, when determining the “focus” of the federal wire fraud statute at step two of the

extraterritoriality analysis, we recognized that the statute has two substantive elements: (1)

the defendant devised or intended to devise a scheme or artifice to defraud, and (2) the

defendant used a wire transmission to execute the scheme or artifice. Id.; see

. We concluded that “the focus of the wire-fraud statute is the use of a wire, not the

means, including by computer”; (2) was actually “transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed”; or (3) the defendant “knows or has reason to know that such visual depiction will be [so] transported or transmitted.”

(a). However, “jurisdictional elements are never the statute’s ‘focus.’” Elbaz,

. 3 For example, § 2422(b) prohibits convincing a minor to engage in criminal sexual activity and § 2252(a) prohibits selling, possessing, or distributing a visual depiction of a minor engaged in sexually explicit conduct. 11 USCA4 Appeal: 22-4131 Doc: 71 Filed: 06/08/2023 Pg: 12 of 22

scheme to defraud,” because the “wire transmission itself is the actus reus that is punishable

by federal law.” Elbaz,

(internal quotation marks omitted). Even though a

scheme to defraud is “a necessary element” of the offense, we determined it is not the focus

of the statute because “it is not the essential conduct being criminalized.”

. The

same logic applies to § 2251(a)’s substantive elements and supports treating the production

or transmission of the depiction—the “essential conduct”—as the statute’s focus.

The legislative history of § 2251(a) confirms that this is the statute’s focus. As the

district court below recognized, Congress has explained that § 2251(a) and related statutes

protect children from coerced sexual activity and the continuing harm they suffer when

depictions of that sexual activity are distributed, via internet or otherwise. See Skinner, 536

F. Supp. 3d at 40–41. The Senate Judiciary Committee Report on the Protection of Children

Against Sexual Exploitation Act of 1977, which first introduced the offense for producing

child pornography, stated that “the use of children as prostitutes or as the subjects of

pornographic materials is very harmful to both the children and the society as a whole.” S.

Rep. No. 95-438, at 5 (1977).

Congressional reports and commentary on later amendments to § 2251(a) continue

this refrain. In recent legislation amending § 2251(a) and related statutes, Congress

explained that “[c]hild pornography is a permanent record of a child’s abuse and the

distribution of child pornography images revictimizes the child each time the image is

viewed.” Effective Child Pornography Prosecution Act of 2007,

Stat. 4001. This legislative history leaves no doubt that the focus of § 2251(a) is the

production or transmission of the visual depiction.

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2.

Having identified the focus of § 2251(a), we next consider whether, in Skinner’s

case, “the conduct relevant to the statute’s focus occurred within the United States.”

Harris,

. We conclude that it did because R.D. was in Virginia when she

participated in each of the sexually explicit video calls with Skinner.

Because the focus of the statute is on the production or transmission of the depiction,

the fact that Skinner was in New Zealand when he participated in the video calls and made

the recordings of R.D. does not prevent his case from qualifying as a domestic application of

§ 2251(a). As we noted in Elbaz, “[t]ransmission . . . occurs in at least two locations:” where

something is sent and where it is received.

. There, the fact that the wire

transmissions traveled through the United States sufficed to make the defendant’s conviction

a permissible domestic application of the wire-fraud statute.

The same is true of the live

transmission of a depiction that forms the basis of a § 2251(a) conviction. In these factual

circumstances, the production of the depiction similarly involved actions in two locations:

the use of R.D.’s computer camera to capture the depiction and Skinner’s computer to record

it. So ample conduct relevant to the statute’s focus—the production and transmission of the

visual depiction—occurred in Virginia, where R.D.’s computer was located.

Our decision in Harris is also instructive. There, the defendant was convicted of

coercing a minor into illegal sexual activity in violation of

(b) after he used

the internet to carry on a sexual relationship with a minor in Virginia.

. Even

though the defendant was stationed in Japan with the U.S. Navy for much of the online

relationship, we concluded that his conviction involved a domestic application of § 2422(b).

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Id. at 561. We explained that “[b]ecause § 2422(b)’s focus is on the coercion of children

into sexual activity, the conduct relevant to the extraterritoriality analysis occurred in

Virginia, where Harris’s victim received his messages and was compelled to assent to his

demands for sexual activity.” Id. at 560. Here, too, Skinner’s presence in New Zealand does

not transform his case into an extraterritorial application when the conduct relevant to

§ 2251(a)’s focus originated in Virginia.

To be sure, the facts in Harris are somewhat different than those at issue here.

Beyond the fact that Harris involved a different (though related) statute, the defendant there

was in the United States when he sent some of the coercive messages to the victim. See id.

But there is no reason to believe the result in Harris would have been any different had the

defendant remained abroad during all of his communications with the victim. The Court’s

reasoning makes clear that the domestic-application inquiry turned on the place where the

conduct relevant to the statute’s focus occurred. According to the Court, the defendant’s

temporary presence in the United States “only bolstered” its holding that, because the victim

was in Virginia during the relevant encounters, the case represented a domestic application

of § 2422(b). Id.

Skinner raises two counterarguments, but neither is persuasive. First, he emphasizes

that he was in New Zealand when he formed the requisite intent to produce and when he

persuaded R.D. to participate in online sex, both of which are necessary elements of a

§ 2251(a) offense. But as we have discussed, the statute is primarily concerned with the

production or transmission of the visual depiction. When the visual depiction is captured in

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and transmitted from the United States, the domestic application analysis does not depend on

the defendant’s location in recording the depiction and receiving the transmission.

Second, at oral argument, Skinner contended that the relevant conduct occurred in

New Zealand because Count 1 did not charge the live transmission of sexually explicit

conduct, but rather named a specific video file he recorded during one of the calls with

R.D. As an initial matter, we note that Skinner did not raise this particular argument in his

opening brief, which ordinarily results in forfeiture of the issue. See A Helping Hand, LLC

v. Baltimore Cty.,

(4th Cir. 2008). Even if we excused that forfeiture

here, nothing in the superseding indictment raises any doubts that the conduct relevant to

the statute’s focus took place in Virginia. Contrary to Skinner’s argument, Count 1 charged

that Skinner acted both with “the purpose of producing visual depictions” of sexually

explicit conduct and with “the purpose of transmitting a live visual depiction of such

conduct.” J.A. 21. The transmission involved both R.D.’s use of the webcam to transmit

the sexually explicit conduct and Skinner’s receipt of that depiction over the live video

feed. See Elbaz,

. So too the production here involved both R.D. capturing

the sexually explicit conduct through her computer camera and Skinner recording that

depiction on his computer. R.D.’s actions in Virginia—essential to the offense charged in

Count 1—make Skinner’s conviction a domestic application of § 2251(a).

At first glance, it might seem counterintuitive to classify Skinner’s conviction as a

domestic application of § 2251(a) when he was overseas at all times relevant to the offense.

But, at bottom, this inquiry turns on where the conduct relevant to the statute’s focus

occurs. For § 2251(a), that conduct is the production or transmission of the visual depiction

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of the minor victim. Because R.D. was in Virginia at all times she captured and transmitted

sexually explicit videos at Skinner’s behest, his conviction involves a permissible domestic

application of § 2251(a), even though “additional and related conduct occurred abroad.”

Harris,

.

IV.

Skinner next argues that his § 2251(a) prosecution violates the Fifth Amendment

Due Process Clause because the statute does not require proof that he knew R.D. was a

minor. Because his sexual interactions with R.D. took place entirely online, Skinner asserts

that he is at least entitled to raise a reasonable-mistake-of-age defense. We disagree.

As a matter of statutory construction, we have held that “knowledge of the victim’s

age is neither an element of [a § 2251(a)] offense nor textually available as an affirmative

defense.” Malloy,

. In Malloy, we looked to the Supreme Court’s decision

in X-Citement Video, which endorsed the same position in dicta. There, the Court held that

, which prohibits the interstate transportation, shipping, receipt,

distribution, and reproduction of child pornography, requires proof that a defendant knew

the materials depicted underage children.

. In reaching that result, the Court

contrasted § 2252 with § 2251(a) and stated that “producers may be convicted under

§ 2251(a) without proof they had knowledge of age.” Id. at 76 n.5. It observed that

§ 2251(a) resembles statutory rape offenses, and that the common-law presumption that

criminal offenses contain a mens rea requirement “expressly excepted sex offenses, such

as [statutory] rape, in which the victim’s actual age was determinative despite defendant’s

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reasonable belief that the girl had reached [the] age of consent.” Id. at 72 n.2 (internal

quotation marks omitted). While this means that a mistake of age is not a valid defense,

the Supreme Court recognized that it is appropriate to assign the risk of such mistakes to

defendants because “the perpetrator confronts the underage victim personally and may

reasonably be required to ascertain that victim’s age.” Id.

Given that the Supreme Court has approvingly linked § 2251(a) to this common-law

rule, it is difficult to conclude that the statute violates due process by imposing strict liability

with respect to the victim’s age. Rather, this precedent signals that the statute is a constitutional

exercise of Congress’s “wide latitude . . . to declare an offense and to exclude elements of

knowledge . . . from its definition.” Lambert v. California,

(1957).

Although Skinner argues otherwise, the fact that a violation of § 2251(a) carries a

fifteen-year mandatory minimum sentence does not give him a due process right to a

reasonable-mistake-of-age defense. The severity of a penalty may assist courts in

determining whether a criminal statute imposes a mens rea requirement, see United States

v. McCauley,

(4th Cir. 2020), but we have already held that § 2251(a)

does not require proof that the defendant was aware of the victim’s age and thus does not

permit a reasonable-mistake-of-age defense. Regardless of this Court’s views on the

fifteen-year mandatory minimum for § 2251(a) offenses, Congress has expressed its

judgment that the sentence be imposed without requiring proof that a defendant knew the

victim was underage. See Malloy, 568 F.3d at 171–72. Once a defendant has been

convicted of a criminal offense, a mandatory minimum sentence generally is consistent

with the Due Process Clause as long as “Congress had a rational basis for its choice of

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penalties” and the punishment “is not based on an arbitrary distinction.” Chapman v.

United States,

(1991). Skinner does not claim that his sentence runs

afoul of these basic requirements.

Instead, Skinner asserts that he cannot be constitutionally convicted under § 2251(a)

because, with all of his sexual encounters with R.D. taking place online, he never had the

opportunity to “confront[] the underage victim personally.” X-Citement Video,

n.2. But as the district court observed, the Supreme Court was not establishing a

constitutional limitation on § 2251(a) prosecutions when it made this statement in

X-Citement Video. See Skinner, 536 F. Supp. 3d at 48. While there might be some due

process limits to imposing criminal liability under § 2251(a) without proving knowledge

of age, Skinner’s case does not implicate them. Skinner had ample opportunities to

confront R.D. and ascertain her age during their online interactions. R.D. told Skinner she

was sixteen, which, even if it had been true, made her underage in the United States. On

multiple occasions, R.D. sent Skinner messages clearly indicating that the age of consent

in the United States is eighteen, and other messages show Skinner was aware that a sexual

relationship with someone under eighteen is illegal in the United States. Some messages

R.D. sent to Skinner referred to him as a “pedo”; he admitted “im a creep”; and R.D. told

him “[y]ou’d get thrown in jail if it was here.” J.A. 636. In one recorded conversation,

R.D. and Skinner even discussed a Virginia criminal statute that prohibits certain adults

from having sexual contact with children under eighteen. J.A. 640–41. Yet despite these

many indications that his conduct was illegal, Skinner persuaded R.D. to perform sexually

explicit acts during video calls, which themselves provided clear opportunities for him to

18 USCA4 Appeal: 22-4131 Doc: 71 Filed: 06/08/2023 Pg: 19 of 22

recognize that R.D. was underage. 4 On these facts, Skinner can hardly claim that he lacked

the ability to ascertain R.D.’s age simply because their encounters took place on a computer

screen rather than in person.

For these reasons, the district court correctly rejected Skinner’s due process

challenge to the § 2251(a) charges in the superseding indictment.

V.

Lastly, Skinner argues that the district court erred by applying the two-level

sentence enhancement for an offense that involves “the commission of . . . sexual contact,”

U.S.S.G. § 2G2.1(b)(2)(A), because masturbation during a video call does not satisfy this

specific offense characteristic. His argument is unavailing.

Courts “interpret the Sentencing Guidelines according to the ordinary rules of

statutory construction” and “give a guideline its plain meaning, as determined by

examination of its language, structure, and purpose.” United States v. Strieper,

, 293–94 (4th Cir. 2012) (internal quotation marks omitted). We begin with the text of

the enhancement. An application note to § 2G2.1 states that “sexual contact” “has the

meaning given that term in

(3).” U.S.S.G. § 2G2.1, cmt. n.2. That statute

defines “sexual contact” as “the intentional touching, either directly or through the

4 The district court made a factual finding that in at least some of the videos, R.D. was not wearing makeup and “appears younger” than sixteen. J.A. 637 n.8; see also J.A. 422 (“I’ve seen a number of the videos, and I can say that in some videos, she might be 16, but in some she is clearly not.”). Skinner does not argue that these findings were clearly erroneous. Even if a reasonable-mistake-of-age defense were available, these findings would undermine Skinner’s claim that he believed R.D. was not underage because the age of consent in New Zealand is sixteen. 19 USCA4 Appeal: 22-4131 Doc: 71 Filed: 06/08/2023 Pg: 20 of 22

clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an

intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any

person.”

(3).

The district court held that this definition, by covering “the intentional touching . . .

of any person,” covers R.D.’s masturbation during the video calls. However, we do not

need to reach that issue, because the term “sexual contact” plainly covers Skinner’s on-

camera masturbation during the live video calls with R.D. For one, “the intentional

touching . . . of any person” is broad enough to cover a defendant’s self-touching. As some

of our sister circuits have recognized, “[t]he statute’s operative phrase ‘any person’ applies

to all persons, including [the defendant] himself.” United States v. Aldrich,

(11th Cir. 2009); see also United States v. Raiburn,

(8th Cir. 2021)

(same); United States v. Pawlowski,

(3d Cir. 2012) (same). Such

conduct also satisfies the second half of the “sexual contact” definition when the defendant

masturbates “with an intent to . . . arouse or gratify the sexual desire of any person” (that

is, either the victim or the defendant himself). Here, Skinner admitted, as part of his plea

agreement, that he masturbated during the live video sessions with R.D., and there is no

question that he did so with the requisite intent. Further, Skinner offers no persuasive

reason why otherwise qualifying contact would fail to satisfy the definition when it occurs

during a video call rather than a physical encounter.

The definition of “sexual act,” another specific offense characteristic in § 2G2.1(b),

reinforces our interpretation of “sexual contact.” Whereas “sexual contact” involves the

“intentional touching . . . of any person,” a “sexual act” is defined in part as “the intentional

20 USCA4 Appeal: 22-4131 Doc: 71 Filed: 06/08/2023 Pg: 21 of 22

touching, not through the clothing, of the genitalia of another person.”

(2)(D) (emphasis added). The reference to “another person” “clearly requires at

least two individuals to be involved in the act.” United States v. Shafer,

(6th Cir. 2009). Congress’s decision to use the broader phrase “any person” in the

definition of “sexual contact” suggests it intended for that term to cover self-touching.

Skinner points out that the definition of “sexually explicit conduct” expressly

includes “masturbation,”

(2)(A)(iii), and he argues that the absence of

similar language in the definition of “sexual contact” indicates that Congress meant for that

term to exclude masturbation. 5 This argument has some appeal, but we are unconvinced

that it can override the plain meaning of the “sexual contact” definition, which is broad

enough to cover a defendant’s masturbation. The definition of “sexually explicit conduct”

includes a specific list of covered acts in addition to masturbation; the fact that an act is

expressly mentioned in that definition does not mean that it cannot also qualify as “sexual

5 The term “sexually explicit conduct” is part of a two-level enhancement that applies when the “offense involved . . . the use of a computer or an interactive computer service to (i) persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in sexually explicit conduct, or to otherwise solicit participation by a minor in such conduct; or (ii) solicit participation with a minor in sexually explicit conduct,” “for the purpose of producing sexually explicit material or for the purpose of transmitting such material live.” U.S.S.G. § 2G2.1(b)(6). The PSR applied this enhancement when calculating Skinner’s offense level, and Skinner did not object.

While Skinner’s conduct clearly satisfied the use-of-computer enhancement, that enhancement is not duplicative of the “sexual contact” enhancement. The former does not require that any “sexually explicit conduct” actually occur; it applies as soon as a defendant uses a computer to solicit a minor’s participation in such conduct or encourages the minor to travel for that purpose. See, e.g., United States v. Zagorski,

(D.C. Cir. 2015). A defendant receives the additional two-level enhancement for “sexual contact” only when an encounter occurs and involves some qualifying form of touching. 21 USCA4 Appeal: 22-4131 Doc: 71 Filed: 06/08/2023 Pg: 22 of 22

contact.” For example, there is no question that “sexual intercourse,” which is another

enumerated form of “sexually explicit conduct,” constitutes “sexual contact” as well. The

same is true of masturbation.

Finally, Skinner asks us to apply the rule of lenity and construe the definition of

“sexual contact” in his favor. While the rule of lenity is an important tool of statutory

construction, it applies only when we diagnose an ambiguity in a criminal statute. United

States v. Campbell,

(4th Cir. 2022). Given that the “sexual contact”

enhancement unambiguously covers Skinner’s conduct, the rule of lenity is not applicable.

Because Skinner admitted to masturbating during the video calls with R.D., we hold

that it was appropriate for the sentencing court to apply the two-level enhancement for an

offense involving “sexual contact.”

VI.

For the reasons stated in this opinion, the district court did not err by denying

Skinner’s motions to dismiss the indictment or applying the two-level “sexual contact”

enhancement at sentencing. Skinner’s conviction and sentence are therefore

AFFIRMED.

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