CARRIER

v.

UNITED STATES

THIS CAUSE is before the Court on Movant, Brandon Carrier’s Objection to Magistrate Report, ECF No. , filed July 7, 2020. On April 23, 2020, Magistrate Judge Lisette M. Reid entered a Report, ECF No. , recommending Movant’s Motion Under [Section] 2255 to Vacate, Set Aside, or Correct Sentence, ECF No. ,1 be denied. The Report informed Movant that objections to the Report, if any, must be filed “within fourteen days of the date of service of [the Report].” Report 26. On June 22, 2020, having received no objection from Movant, the Court entered an Order, ECF No. , adopting Judge Reid’s Report and denying Movant’s Motion. See Jun. 22, 2020 Order 5. Movant now informs the Court he belatedly mailed his Objection because he was diagnosed with COVID-19, confined in quarantine, and had no access to legal materials to formulate his Objection. See Obj. 6. Accordingly, the Court finds good cause to consider Movant’s belated Objection. When a magistrate judge’s “disposition” has been objected to, district courts must review

enhancements under United States Sentencing Guidelines (“U.S.S.G”), sections 2G2.1 and 4B1.5. See Obj. 2. Movant also argues he should not have been “held liable to direct engagement with a minor to achieve [an] enhance[ment] [with regard to the] Count I conviction under 18 Title U.S.C. [section] 2251(a).” Id. 3. As discussed in the Report, Movant was convicted and sentenced for attempted production of child pornography under 18 U.S.C section 2251. See Report⁵; Plea Agreement, CR ECF No. ¶ 1.2 Movant received a sentencing enhancement under U.S.S.G. 2G2.1 because his offense involved a minor child under the age of 12. See Report¹, 9. In his Brief before Magistrate Judge Reid, Movant argued (1) the section 2G2.1 enhancement should not have been applied because he

communicated with an undercover officer, and not an actual child; and (2) the enhancement was inappropriately applied because he made no “direct attempt to manufacture pornography with a prepubescent female.” Brief 6; see also id. 5. Judge Reid concluded, and the Court agrees, that Movant’s arguments failed under United States v. Lee, 603 F. 3d 904 (11th Cir. 2010). In Lee, the Eleventh Circuit affirmed the defendant’s conviction for attempted enticement of a minor to engage in sexual activity, attempted enticement of a minor to produce child pornography, and knowing receipt of child pornography. See generally

conduct was not criminally proscribed.” Id. (alterations adopted, internal quotation marks and citations omitted).³ Lee directs the same result here with respect to Movant’s argument he should not have been “held liable to direct engagement with a minor to achieve [an] enhance[ment] [with regard to the] Count I conviction under 18 Title U.S.C. [section] 2251(a).” Obj.³ (emphasis added). Movant’s argument the U.S.S.G. 2G2.1 enhancement should not have been applied to his section 2251(a) conviction because he did not “communi[cate] with an individual believed to be a minor” Obj.², is foreclosed by comment¹ to U.S.S.G. 2G2.1, which defines a “minor” to include “an individual, whether fictitious or not, who a law enforcement officer represented to a participant

(i) had not attained the age of 18 years, and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or . . . an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.” See also United States v. Bohannon, 476 F. 3d 1246, 1252 (11th Cir. 2007) (rejecting the defendant’s argument a 2G2.1 sentence enhancement based on the age of a fictitious victim was an impermissible sentencing “manipulation.”)

Construed liberally, Movant now appears to argue the section 4B1.5 and 2G2.1 enhancements should have only been applied if the Government “satisfie[ed] the State of Florida Statutory terms in determining [whether] Movant directly employed, used, persuaded, induced, enticed, or coerced any minor.” Obj. 2. Movant directs the Court to several cases, “reconciling [the] use of 18 Title U.S.C. [section] 2422(b) with state statutory terms encompassing an undercover law enforcement officer and/or minor,” including: United States v. Kelly, No. 99- 10100-01, 2000 WL 433093 (D. Kan. Mar.², 2000);4 United States v. Thurber, 215 F. App’ x 677 (9th Cir. 2006); United States v. Taylor, 640 F. 3d 255 (7th Cir. 2011); and Aplin v. State, 889 N.E. 2d 882 (Ind. Ct. App. 2008), overruled by King v. State, 921 N.E. 2d 1288 (Ind. 2010).5

The foregoing cases are inapposite. First, Movant was convicted under 18 U.S.C. section 2251, not section 2422(b). Second, Movant fails to explain how any of cases, none of which are binding, support his contention that a sentencing enhancement may only be applied to a conviction

for a federal offense if the Government shows the defendant’s underlying conduct also violates a parallel state criminal statute. Accordingly, having fully considered Movant’s Objection, it is ORDERED AND ADJUDGED that,

1. The Report and Recommendation, ECF No. is ADOPTED.

2. Movant’s Motion, ECF No. , is DENIED.

3. Acertificate of appealability shall NOT issue.

4. The Clerk of Court is directed to CLOSE this case and any pending motions are DENIED as moot. DONE AND ORDERED in Chambers at Miami, Florida, on July 27, 2020.

BETHBLOOM =——<“—i—O

UNITED STATES DISTRICT JUDGE

cc: Brandon Carrier, pro se; counsel of record Magistrate Judge Lisette M. Reid