ANNIE YAMSON
Daily Reporter
In a per curiam decision issued Monday, the United States Court of Appeals for the Sixth Circuit affirmed the judgment of a district court in a case involving the transportation of a minor across the Canadian border.
Jonathan Waltman was indicted by the U.S. District Court for the Northern District of Ohio following his arrest through a child exploitation undercover operation.
The two-count indictment charged him with attempting to transport an 8-year-old girl in foreign commerce from Canada to Michigan with the intent to engage in criminal sexual conduct, and attempting to travel in interstate commerce from Ohio to Michigan for the purpose of engaging in illicit sexual conduct with a minor.
Waltman’s total offense level was calculated to be 35 and his criminal history category as V, resulting in a sentencing guidelines range of 262 to 327 months of imprisonment.
Following a guilty plea, Waltman was sentenced to 294 months in prison, followed by 25 years of supervised release.
Waltman appealed, arguing that the district court violated the Federal Rules of Criminal Procedure when it entered judgment on the attempted transportation charge “in the absence of a factual basis to support his guilty plea to that charge.”
“Waltman consented to the receipt of his guilty plea by a magistrate judge,” the Court of Appeals held.
In fact, the magistrate judge issued a report stating, “the parties provided sufficient information about the charged offenses and the defendant’s conduct to establish a factual basis for the plea.”
In addition, the magistrate issued a warning that a failure to file an objection to the report might waive the right to appeal.
Waltman did not object to the report, which the district court adopted, and subsequently waived his right to appeal, which he did anyway.
Nevertheless, the court of appeals addressed the issue, stating that “even if Waltman did not waive his right to appeal, the district court had a factual basis to enter judgment on his guilty plea to the attempted transportation charge.”
The appellate panel cited the record of the plea hearing, during which the parties described the events leading up to Waltman’s arrest.
According to the record, Waltman communicated with an undercover ICE agent via e-mail in June 2010.
The agent pretended to operate a website offering “international travel” from Cleveland to Canada for the purpose of engaging in sexually explicit conduct with minors.
Waltman informed the agent that he could not travel to Canada because of a prior felony conviction for a sex offense.
The undercover agent agreed to transport the child from Canada to Detroit and provided Waltman with a catalog of fictitious children to choose from.
“Defendant selected a child purported to be an 8-year-old girl and indicated his desire to engage in illicit sexual conduct ... for which he could have been charged with a criminal offense,” said the district court.
Waltman sent a $100 deposit via U.S. mail which the undercover agent received on July 16, 2010.
On July 25, Waltman met with the agent, who he thought was going to transport him to Detroit.
He provided $1,000 as the balance of his payment and was subsequently arrested.
Waltman contended his travel within Ohio did not constitute a “substantial step toward committing the transportation offense,” but the appellate panel found that he ignored the facts of his situation.
Specifically, the fact that the deposit was a condition precedent to transporting the minor to the U.S. and that Waltman paid the required amount.
An e-mail from the agent stated, “We will not bring down from Canada until we receive from you the deposit.”
According to the appellate court, by choosing the girl and sending the deposit, Waltman took substantial steps toward completing the transportation offense.
When he paid the remaining balance, Waltman believed the child had already been transported into the U.S. and was waiting for him in Detroit.
“The degree of direction and control exercised by the defendant really did amount to more than inducement,” wrote the appellate panel. “Accordingly, a sufficient factual basis existed to support the entry of judgment on Waltman’s guilty plea to the attempted transportation charge.”
Waltman also argued the trial court erred in its sentencing entry by adding enhancement to his base offense level because of his prior felony and the fact that he completed the transaction.
He contended that an enhancement wasn’t called for because there was no actual victim or sexual abuse.
However, the court of appeals agreed with the trial court when it found that, in Waltman’s mind, there was an actual victim and he took all of the necessary steps toward completing the offense.
Waltman’s conviction and sentence were ultimately affirmed.
Circuit Judges Damon Keith, Helene White and Jane Stranch formed the panel that issued the unanimous decision.
The case is cited United States v. Waltman, Case No. 12-3235.