Split Noted: Can one unduly influence a non-existent minor?

Per United States v. Faris, 2009 WL 3011047 (11th Cir. Sept. 23, 2009)

Charles Faris met an undercover police officer posing as a mother of two young girls in a chat room titled "open minded parents." After Faris arranged to meet the mother and daughters in person, he was convicted of violating 18 U.S.C. § 2422, using a facility of interstate commerce to entice a minor to engage in sexual activity. U.S.S.G. § 2G1.3(b)(2)(B) increases the base offense level if "a participant otherwise unduly influenced a minor to engage in prohibited sexual conduct."

Relying on binding circuit precedent,United States v. Murrell, the Eleventh affirms the application of the enhancement even though Faris never talked with a minor, only the fictitious minor's parent. (The statute defines minor as including a fictitious person who a cop had told a participant about.) Murell had reasoned that "the efficacy of § 2422(b) would be eviscerated if a defendant could circumvent the statute simply by employing an intermediary to carry out his intended objective."

The Eleventh noted that the Sixth and Seventh Circuits had come out the other way, with the Sixth Circuit reasoning that "The dictionary definition of "undue influence" suggests, by its reference to affecting the mind or action of another, that there must be an actual person who is affected in some way. An undercover law enforcement officer who is not at all persuaded in thought or in deed, therefore, cannot be 'unduly influenced.'"

I am more persuaded by the CA6 and CA7's reasoning. The effectiveness of the statute would not be impaired, contra Murell, because all that is at issue is a sentencing factor, not an element of conviction.

More importantly, the Sentencing Commission was also more persuaded by their reasoning. In May, they adopted an application note to the effect that "subsection (b)(2)(B) does not apply in a case in which the only ‘minor’ involved in the offense is an undercover law enforcement officer."

The CA11 acknowledges the amendment, but notes that it is not effective until November. Until then, Congress could change the Commission's proposed amendment, and the Eleventh Circuit panel is still bound by previous panel precedent. All of this is true, so I think the panel did the right thing in affirming.

I just wonder whether the result would have been the same had a CA2, CA7 or CADC panel been in the exact same situation. These circuits, whether by local rule or custom, have a different approach to precedent than the others. In the CA2,7, and DC, a panel may overrule prior precedent without the necessity for an en banc court. The panel must just pre-circulate its opinion to the court.

In the Seventh Circuit, if a judge of the court disagrees with the new position, they must request rehearing en banc, and a majority of the court must vote for rehearing in order to prevent the new opinion (and overruling of old precedent) from becoming law. In other words, the system has a bias for the new opinion (requiring a majority vote to prevent overruling), rather than for the old opinion (requiring a majority vote to go en banc to potentially overrule it).

Had this case arose in the Seventh Circuit, I could certainly see a panel saying -- yes, we had held the enhancement applicable in the past. But other circuits have disagreed with us, and the Sentencing Commission has weighed in on their side. Given all this, we overrule our precedents and find that Faris did not unduly influence a child.