7th Circuit Discusses Circuit Split Re: Definition of "Use" in § 3B1.4 of Guidelines; Sides With 3rd Circuit

Per United States v. Acosta, --- F.3d ----, 2007 WL 316812 (7th Cir. Feb. 5, 2007):

Acosta first argues that the district court erred by applying a two-level enhancement for using a minor in the commission of the offense. Section 3B1.4 of the Guidelines provides that "[i]f the defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense, increase by 2 levels." The first application note to that section states that " 'used or attempted to use' includes directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting."

The circuits are divided on the meaning of the term "use" in § 3B1.4. We have observed that a "defendant 'used minors in the commission of his crimes' if his affirmative actions involved minors in his criminal activities." United States v. Ramsey, 237 F.3d 853, 859 (7th Cir.2001) (quoting United States v. Vivit, 214 F.3d 908, 920 (7th Cir.2000)). In Ramsey, we affirmed the sentencing court's application of the enhancement for use of a minor where the defendant had directed a minor to sell crack cocaine. Id. at 860-61. Four circuits have agreed that the enhancement applies only when the defendant by some affirmative act helps to involve the minor in the criminal enterprise. See United States v. Pojilenko, 416 F.3d 243, 247 (3d Cir.2005); United States v. Suitor, 253 F.3d 1206, 1210 (10th Cir.2001); United States v. Parker, 241 F.3d 1114, 1120-21 (9th Cir.2001); United States v. Butler, 207 F.3d 839, 849 (6th Cir.2000).

In contrast, three circuits take the position that an enhancement under § 3B1.4 is warranted where, although the defendant did not personally engage a minor, he could "reasonably foresee" a co-conspirator's use of a minor. See United States v. Lewis, 386 F.3d 475, 479-80 (2d Cir.2004); United States v. McClain, 252 F.3d 1279, 1287-88 (11th Cir.2001); United States v. Patrick, 248 F.3d 11, 27-28 (1st Cir.2001). These circuits define "use" in § 3B1.4 by reference to § 1B1.3(a), a general application provision which provides: "Unless otherwise specified, ... adjustments in Chapter Three [ ] shall be determined on the basis of ... all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." Although they do not all explicitly mention the decision, each of these cases is an extension of the Supreme Court's ruling in Pinkerton v. United States, 328 U.S. 640 (1946), in which the Court held that a defendant is liable for the reasonably foreseeable acts of his co-conspirators done in furtherance of the conspiracy.

Acosta was undeniably aware of the minors' participation, but there is no evidence that she independently directed or encouraged Quagon and Blackdeer, or that she played any role in bringing them into the criminal enterprise. Indeed, at argument, the government conceded that Acosta did not "direct[ ], command [ ], encourage[ ]," or do any other act toward the minors that is spelled out in application note one of § 3B1.4. The parties therefore agree that if we side with Acosta, who asks us to continue following the majority "affirmative act" rule, the enhancement does not apply. And if we side with the government, which urges us to adopt the minority "reasonably foreseeable" test, it does.

Among our fellow circuits taking the "affirmative act" position, only the Third has explicitly rejected the reasonably foreseeable test. . . . We find the Third Circuit's reasoning persuasive. Pinkerton liability makes no sense in the context of the individualized enhancements set out in section 3B of the Guidelines, which seek to punish the particular behavior of individual members of a conspiracy. Indeed, the section's introductory note states that the part "provides adjustments to the offense level based upon the role the defendant played in committing the offense" (emphasis added). The Government was unable to identify any case in which courts have applied Pinkerton principles to the other enhancements listed in Part B of Chapter 3 of the Guidelines. Since Acosta did not personally "use" a minor in committing the offense, the district court's decision to apply this enhancement must be vacated.