United States of America v. Rodney Davis

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 16, 2021 Decided July 29, 2022
No. 19-3060
UNITED S TATES OF A MERICA,
APPELLEE
v.
R ODNEY DAVIS ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cr-00026-1)
Robin M. Earnest, appointed by the court, argued the cause
and filed the briefs for appellant.
Michael E. McGovern, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Chrisellen R.
Kolb and John P. Mannarino, Assistant U.S. Attorneys.
Before: M ILLETT, R AO , and WALKER , Circuit Judges.
Opinion for the Court filed by Circuit Judge R AO .
R AO , Circuit Judge: Rodney Davis pled guilty to traveling
across state lines with plans to sexually abuse an eight-year-old
child. Davis’ arrest was the result of a successful sting

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operation in which an officer posed as the father of a fictitious
child and communicated with Davis. At sentencing, the district
court applied an enhancement because “the victim had not
attained the age of twelve years.” U.S.S.G. § 2A3.1(b)(2)(A).
On appeal, Davis argues that this enhancement cannot apply to
fictitious victims and claims that defense counsel rendered
constitutionally deficient performance by failing to contest the
enhancement’s application on that ground. We reject Davis’
ineffective assistance claim as meritless since the enhancement
can apply even when the victim is fictitious. We also reject
Davis’ remaining sentencing challenges as the right to appeal
them was knowingly, intelligently, and voluntarily waived.
I.
In early 2018, Davis connected online with a “father”
offering his eight-year-old daughter for illicit sexual activities.
Unbeknownst to Davis, the father was really an undercover
officer running a sting operation for the Metropolitan Police
Department–FBI Child Exploitation Task Force, and the eight-
year-old was fictitious. Davis continued to chat online with the
officer, coordinating how to sexually abuse the young girl.
When the officer revealed the child’s age, Davis was “totally
cool” and had no qualms. Davis’ primary concern was knowing
how to initiate sex acts with the child and whether there were
any “ground rules” of what could and could not be done to the
eight-year-old during “play time.” At various points during
conversations with the officer, Davis graphically described
fantasies of forcing the child to have oral sex, made plans to
penetrate the child vaginally and anally, and suggested that the
officer and Davis should “play[] with her simultaneously.”
Davis also expressed excitement and hope that this “good
arrangement” would become a recurring engagement with the
abusive acts steadily progressing at subsequent meetings.
After a few days of communications along these lines, the
officer invited Davis to meet up in the District of Columbia to

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begin the planned sex acts with the child. That same day, Davis
accepted the invitation, left work, and drove across state lines
to the designated meeting point. Davis was arrested shortly
after arrival.
The federal government charged Davis with one count of
“travel[ing] in interstate commerce … with a motivating
purpose of engaging in … illicit sexual conduct with another
person.” 18 U.S.C. § 2423(b). Davis pled guilty to that charge
and admitted to traveling across state lines “for the purpose of
engaging in a sexual act with an eight-year-old girl.” Davis also
waived the right to appeal any sentence imposed as part of the
plea agreement unless the claim was based on ineffective
assistance of counsel. Satisfied that Davis was “fully
competent and capable of” pleading guilty and that the decision
was “knowing and voluntary,” the court accepted Davis’ guilty
plea.
Both in the plea agreement and later sentencing
memoranda, the parties agreed to a four-point sentencing
enhancement. That enhancement applies when a defendant has
committed or attempted to commit criminal sexual abuse
against a “victim [who] had not attained the age of twelve
years.” U.S.S.G. § 2A3.1(b)(2)(A) (“minor victim
enhancement”). Instead of arguing against the enhancement’s
applicability, Davis’ counsel asked for a downward variance to
recognize that the “victim was not real.” The district court
disagreed that a variance was warranted because, fictitious or
not, Davis thought an eight-year-old was involved, planned to
sexually abuse that girl, tried to effectuate those plans, and
hoped to perpetuate that abuse in the future. Adopting the
recommended Guidelines range and considering all the
relevant factors, the district court sentenced Davis to 108
months of imprisonment and 120 months of supervised release.
Davis appealed.

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II.
Davis first claims that defense counsel rendered
constitutionally deficient performance by failing to contest the
minor victim enhancement’s application at sentencing since the
enhancement does not apply to situations involving fictitious
victims. Because this argument lacks legal merit, defense
counsel’s failure to raise it is not constitutionally deficient
performance.
To show ineffective assistance of counsel, “the defendant
must show both error by counsel and prejudice to the defense.”
United States v. Marshall, 946 F.3d 591, 595 (D.C. Cir. 2020)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Not only must there be error, but the “[e]rror must be so serious
that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Id. (cleaned up). A
defendant cannot show that an error resulted in constitutionally
deficient performance, however, if the allegation of error is
meritless. United States v. Islam, 932 F.3d 957, 963–64 (D.C.
Cir. 2019). As we have repeatedly held, “[c]ounsel’s failure to
raise a meritless … objection [is] not deficient performance.”
United States v. Sitzmann, 893 F.3d 811, 833 (D.C. Cir. 2018)
(per curiam).
To determine whether Davis’ claims have merit, we turn
to whether the minor victim enhancement applies in situations
where the victim was fictitious. See U.S.S.G.
§ 2A3.1(b)(2)(A). Our circuit has yet to pass on this question,
but the three circuits to consider the issue agree that fictitious
victims can trigger this sentencing enhancement. See United
States v. Angwin, 560 F.3d 549 (6th Cir. 2009); United States
v. Graham, 413 F.3d 1211 (10th Cir. 2005); United States v.
Lebovitz, 401 F.3d 1263 (11th Cir. 2005). We join them and
hold that a victim’s fictitious nature will not foreclose
application of the minor victim enhancement if a defendant
intended to sexually abuse an individual the defendant thought

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“had not attained the age of twelve years.” See U.S.S.G.
§ 2A3.1(b)(2)(A). Four points support our conclusion.
First, the minor victim enhancement is part of a Guidelines
section that applies to offenses for “Criminal Sexual Abuse”
and “Attempt[s] to Commit Criminal Sexual Abuse.” See id.
§ 2A3.1. Attempts to commit sexual abuse focus on a
defendant’s intent and conduct directed at accomplishing that
abuse. An offense could therefore fit within this Guidelines
section even if the defendant was “unable to complete the crime
because the victims were fictitious.” United States v. Butler, 92
F.3d 960, 963 (9th Cir. 1996). In Lebovitz, the Eleventh Circuit
explained that a defendant’s “intent and conduct” were all that
mattered in determining whether a defendant had “attempted
[to commit] criminal sexual abuse,” not whether the defendant
carried out or could have carried out his intentions against a
fictitious victim. 401 F.3d at 1268. As the minor victim
enhancement applies to completed and attempted sexual abuse,
we decline to limit the enhancement’s applicability merely
because the defendant tried, but was unable, to abuse a
fictitious victim under twelve. See id. at 1270 (that a defendant
“did not get to have sex with the girl because she did not exist
is of no consequence to his sentence” because the Guidelines
section also applies to attempts) (cleaned up).
Second, including fictitious children within the minor
victim enhancement comports with Davis’ particular crime.
Davis pled guilty to “travel[ing] in interstate
commerce … with a motivating purpose of engaging
in … illicit sexual conduct,” which is defined to include a
sexual act with a person under the age of eighteen. 18 U.S.C.
§ 2423(b), (f)(1) (emphasis added). The conviction “turned
simply on the illegal purpose for which [Davis] traveled.”
Lebovitz, 401 F.3d at 1268 (cleaned up). Because that purpose
is what matters under Section 2423(b), we recently explained
that when a defendant travels across state lines to engage in sex

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acts with a child that turns out to be fictitious, the impossibility
of completing the crime is not a cognizable defense. United
States v. Lieu, 963 F.3d 122, 126–27 (D.C. Cir. 2020). We held
that a defendant is criminally liable so long as he “inten[ded]
to engage in illicit sexual conduct” with an individual that the
defendant “believes … to be” under eighteen regardless of “the
circumstances as they may have existed in fact.” Id. at 127
(cleaned up). Both the Section 2423(b) offense and the minor
victim enhancement turn on a defendant’s intent to commit
abuse and therefore may encompass fictitious minors.
Third, the language and context of the minor victim
enhancement focus on a victim’s characteristics, not the harm
done to the victim. The enhancement applies if “the victim had
not attained the age of twelve years.” U.S.S.G.
§ 2A3.1(b)(2)(A). By contrast, other enhancements in Section
2A3.1 apply, for example, “[i]f the victim sustained permanent
or life-threatening bodily injury,” or “[i]f the victim was
abducted.” Id. § 2A3.1(b)(4)(A), (b)(5). While these examples
focus on harm to the victim, such as injury or abduction, the
minor victim enhancement refers only to the victim’s age. The
enhancement’s applicability therefore “does not … depend on
the effect of the defendant’s conduct upon the victim,” but
rather the victim’s characteristics. See Angwin, 560 F.3d at 552
(cleaned up).
Finally, because the word “victim” is defined to include
undercover officers, we can infer that the enhancement turns
on a victim’s characteristics as understood by the defendant,
not necessarily as they exist in reality. The commentary to
Section 2A3.1 explains that “‘[v]ictim’ includes an undercover
law enforcement officer.” U.S.S.G. § 2A3.1 cmt. 1 (cleaned
up); see also United States v. DeCarlo, 434 F.3d 447, 459 (6th
Cir. 2006) (explaining this definition “eliminates any doubt”
that undercover officers can trigger the minor victim
enhancement). When an officer poses as a would-be victim, it

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is not the officer’s actual age that matters for purposes of the
enhancement. Instead, in such situations we “punish the
defendant’s intentions” based on the perceived “characteristics
of the intended, albeit fictional, victim.” See Angwin, 560 F.3d
at 552. “The targets of sting operations are not relieved of
criminal liability merely because their intended victim turned
out to be an undercover agent and not a child.” Graham, 413
F.3d at 1220 (cleaned up). There is also no material difference
between an officer posing as a child or, as in Davis’ case,
pretending to prostitute a fictitious one. In both situations “the
defendant’s intent is the same,” and the minor victim
enhancement applies. Angwin, 560 F.3d at 552.
We are unpersuaded by Davis’ counterarguments. Davis
first maintains that “victim” is ordinarily understood to mean a
person who has been “acted on and usually adversely affected,”
but that a fictitious victim cannot be acted upon or affected.
While Davis’ definition captures one ordinary meaning of
“victim,” the minor victim enhancement has a specialized
context. See United States v. Bronstein, 849 F.3d 1101, 1108
(D.C. Cir. 2017) (an “elementary rule of statutory
interpretation” is that “[w]ords receive their plain, obvious and
common sense meaning, unless context furnishes some ground
to control, qualify, or enlarge it”) (cleaned up). The minor
victim enhancement applies to attempts and also includes a
“victim” that turned out to be an undercover officer. U.S.S.G.
§ 2A3.1(b)(2) & cmt. 1. In context, the minor victim
enhancement can be triggered by fictitious victims.
Davis also argues our reading is incorrect because the
enhancement does not use the word “minor,” a term used in a
different Guidelines provision and explicitly defined to include
“fictitious” individuals. See id. § 2A3.1(b)(6) & cmt. 1. Had the
Sentencing Commission wanted the minor victim enhancement
to include fictitious individuals, Davis argues, it would have
used the word “minor” as it did in other enhancements. Davis

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assumes that because “minor” and “victim” are different
words, they must carry mutually exclusive meanings. This
assumption, however, is unwarranted because words
sometimes express overlapping meaning, as indicated by
context. See Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S.
519, 540 (2013) (explaining no “canon of
interpretation … forbids interpreting different words used in
different parts of the same statute to mean roughly the same
thing”). Here, both terms are broad enough to include fictitious
individuals, and we know they overlap: every “victim” under
twelve will also be a “minor” as defined by the Guidelines. See
U.S.S.G. § 2A3.1(b)(2)(A) & cmt. 1. Because the two terms
overlap, no inference can be drawn from the fact that the minor
victim enhancement refers to “victim” rather than “minor.”1
We join our sister circuits in holding that application of the
minor victim enhancement turns on the defendant’s intent and
the characteristics of the victim as perceived by the defendant.
The enhancement can apply “whether the minor ‘victim’ is
real, fictitious, or an undercover officer.” Lebovitz, 401 F.3d at
1270 (cleaned up).
Davis intended to sexually abuse an eight-year-old girl and
therefore the minor victim enhancement applied. Defense
counsel’s failure to raise a meritless challenge did not
constitute deficient performance. See Sitzmann, 893 F.3d at
1 Davis also contends that by allowing fictitious individuals to be
“victims,” other enhancements in Section 2A3.1 would make no
sense. It would be absurd, Davis maintains, to say that a defendant’s
sentence could be enhanced when a “[fictitious] victim was
abducted” since “the Guidelines were not intended to punish
abducting a fiction.” As the issue is not before us, we decline to opine
in the abstract on whether fictitious victims can trigger Section
2A3.1’s other enhancements.

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833. We therefore reject Davis’ ineffective assistance of
counsel claim.
III.
Davis also claims that the district court committed
substantive and procedural errors during sentencing by failing
to announce the standard conditions of Davis’ supervised
release; inadequately factoring Davis’ gender identity into the
sentence; and rejecting evidence of sentencing disparities
between Davis and similarly situated defendants. We cannot
reach those arguments, however, as Davis waived the right to
appeal them.
Without disputing that the sentencing challenges fall
within the plain meaning of the appeal waiver, Davis contends
that the waiver can be set aside because of defense counsel’s
constitutionally deficient advice to sign the plea agreement.
That advice fell below constitutional standards, Davis
maintains, because defense counsel should have told Davis not
to concede the minor victim enhancement’s applicability in the
plea agreement. But as we explained above, any failure to
oppose the enhancement’s application was not constitutionally
deficient performance.
Alternatively, Davis claims the district court’s violation of
Federal Rule of Criminal Procedure 11 invalidates the waiver.
Before accepting a guilty plea, Rule 11 obligates the district
court to “inform the defendant of, and determine that the
defendant understands, … the terms of any plea-agreement
provision waiving the right to appeal.” FED. R. C RIM. P.
11(b)(1)(N). The district court failed to discuss the right to
appeal the sentence during the plea hearing with Davis in
violation of this rule. But a violation of Rule 11 is considered
“harmless error if it does not affect substantial rights.” FED. R.
C RIM. P. 11(h). In United States v. Lee, for instance, we rejected
the argument that a Rule 11 error “automatically [made] an

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appeal waiver not knowing, intelligent, and voluntary.” 888
F.3d 503, 506 (D.C. Cir. 2018) (emphasis removed). We
explained it “makes little sense” to reject an appeal waiver
“merely because it was not mentioned at the plea hearing”
when the defendant’s waiver was otherwise knowing,
intelligent, and voluntary. Id. Because the Rule 11 objection
was not raised before the district court, our review is for plain
error. Id. at 508 n.3. To set aside the appeal waiver, Davis bears
the burden of showing that the Rule 11 error affected
substantial rights, which means demonstrating the waiver was
not, in fact, knowing, intelligent, or voluntary. Id. at 508.
Davis failed to make this showing. The record
demonstrates that the written plea waiver was clear, and Davis
attested to understanding and agreeing with its terms. Under
the heading “Appeal Rights,” the plea agreement explained that
Davis was waiving “the right to appeal the sentence in this case,
including but not limited to any term of imprisonment, fine,
forfeiture, award of restitution, term or condition of supervised
release, authority of the Court to set conditions of release, and
the manner in which the sentence was determined.” Davis
signed the agreement, averring to have “read every page” and
“fully underst[ood] … and agree[d] … without reservation.”
The colloquy during the plea hearing provides further
support of Davis’ awareness and understanding. The district
court asked whether Davis had “read [the agreement]
carefully,” “underst[ood] it,” and had “enough time to talk to
[defense counsel] about it.” To each question, Davis
responded, “Yes.” The court then asked defense counsel to
“briefly summarize the terms of the plea agreement,” during
which counsel explained, among other things, that “[t]his is a
case in which there is an appeal waiver.” The court then asked,
“is this what you have agreed to?” Davis again said, “Yes.”
Finally, the court asked whether Davis “ha[d] any confusions
or questions about this agreement,” to which Davis responded,

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“No.” Davis reaffirmed accepting the terms of the plea
agreement and the appeal waiver.
In short, nothing in the record suggests Davis
misunderstood or lacked awareness of the appeal waiver’s
terms. See Lee, 888 F.3d at 508 (enforcing an appeal waiver
when “the written plea agreement was crystal clear”; the
defendant “signed the agreement” and “orally reaffirmed to the
Court that he had read” the agreement without additional
questions; and “no record evidence suggest[ed] that [the
defendant] was confused or somehow misunderstood the
appeal-waiver provision”). Rather, the waiver was “knowing”
because Davis was “aware of and underst[ood] the risks
involved in [the] decision” to waive the right to appeal. See
United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009).
The district court’s Rule 11 error did not affect Davis’
substantial rights, and therefore we enforce the waiver and
dismiss the remaining issues.
* * *
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.

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