United States v. Gary Lee Hodges - Affirmance of Conviction

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-7186

UNITED STATES OF AMERICA, Plaintiff – Appellee,

GARY LEE HODGES, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Frank W. Volk, Chief District Judge. (5:22-cr-00033-1) Argued: January 30, 2026 Decided: March 25, 2026 Before AGEE, BENJAMIN, and BERNER, Circuit Judges. Affirmed by published opinion. Judge Agee wrote the opinion in which Judge Benjamin and Judge Berner joined.

ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Charleston, West Virginia, for Appellant. Jennifer Rada Herrald, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Wesley P. Page, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Lisa G. Johnston, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

AGEE, Circuit Judge: In 2021, Gary Lee Hodges connected online with “Alice,” who claimed to have an 11-year-old daughter and a 13-year-old daughter. The pair spoke at length about Hodges’s desire to engage in “family sexual relations.” J.A. 15. As it turns out, Alice and her two daughters were fictitious persons created by federal law enforcement officers in West Virginia. After Hodges flew to West Virginia to meet Alice and her daughters, federal agents arrested him. Hodges pleaded guilty to two violations of 18 U.S.C. § 2422(b) for attempted enticement of a minor to engage in criminal sexual conduct. At Hodges’s sentencing hearing, the district court applied two United States Sentencing Guidelines enhancements: U.S.S.G. § 2G1.3(b)(3)(A) and (b)(5). Both enhancements required the offense to “involve[]” a “minor.” U.S.S.G. § 2G1.3(b)(3)(A) and (b)(5). At sentencing, Hodges did not object to application of either enhancement. The district court calculated Hodges’s Guidelines range as 324 to 405 months’ imprisonment, and sentenced him to the bottom of the range: 324 months’ imprisonment followed by 15 years of supervised release. Hodges now challenges the district court’s application of both enhancements. He contends that the term “minor,” as used in § 2G1.3(b), does not include fictitious minors. For the reasons that follow, we discern no error (plain or otherwise) and affirm Hodges’s sentence. 2

In December 2021, Hodges began communicating with Alice through a social networking website catering to users’ sexual fetishes. Alice claimed to live in West Virginia and have two daughters, ages 11 and 13. Hodges and Alice exchanged phone numbers, at which point the pair began texting about Hodges’s interest in what he described as “family sexual relations.” J.A. 15. However, unbeknownst to Hodges, Alice and her two daughters were fictitious people created by law enforcement officers. Intending to meet Alice and her daughters in person, Hodges booked a flight from Montana to West Virginia and a four-night stay at a hotel in Beckley, West Virginia. He also sent them gifts and booked a trip for the four of them to go to Washington, D.C. Upon his arrival in West Virginia, Hodges was arrested by federal law enforcement officials. At that point, he learned that neither Alice nor her daughters were real persons. Hodges pleaded guilty without the benefit of a written agreement to two violations Relevant here, the Pre-of 18 U.S.C. § 2422(b) for attempted enticement of a minor. 1 Sentence Investigative Report recommended a two-level enhancement under § 2G1.3(b)(3)(A) because “the offense involved the use of a computer or an interactive computer service to [] persuade, induce, entice, coerce, or facilitate the travel of, the minor

In full, 28 U.S.C. § 2422(b) provides: “Whoever, using the mail or any facility or 1 means of interstate or foreign commerce, . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.” Among other things, the provision “prohibits convincing a minor to engage in criminal sexual activity.” United States v. Skinner, 70 F.4th 219, 226 n.3 (4th Cir. 2023) (per curiam). 3

to engage in prohibited sexual conduct.” It also recommended an eight-level enhancement under U.S.S.G. § 2G1.3(b)(5) because “the offense involved a minor who had not attained the age of 12 years,” referencing Alice’s 11-year-old fictitious daughter. At Hodges’s sentencing hearing, the district court applied both enhancements and calculated a Guidelines range of 324 to 405 months’ imprisonment. Hodges did not object to the application of either enhancement. The district court sentenced Hodges to 324 months’ imprisonment followed by a 15-year term of supervised release. No notice of appeal was filed. In 2024, Hodges filed a motion under 28 U.S.C. § 2255, contending in relevant part that trial counsel’s failure to file a timely notice of appeal from his criminal judgment constituted ineffective assistance of counsel. The district court granted Hodges’s motion on that ground and ordered the original judgment be vacated and re-entered to restart the clock to notice an appeal. Following that order, Hodges noted a timely appeal. This Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

Because Hodges did not object to the application of the Guidelines enhancements To demonstrate in the district court, this Court reviews their application for plain error. 2 plain error, Hodges “must show that: (1) there was error; (2) the error was plain; and (3)

Hodges does not contest that plain error review applies. 2 4

the error affected [his] substantial rights.” United States v. Simmons, 11 F.4th 239, 263 (4th Cir. 2021); see Fed. R. Crim. P. 52(b). In practice, this is an exacting standard. “An error is plain if the settled law of the Supreme Court or this circuit establishes that an error has occurred.” United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (internal quotation marks omitted). Without such binding authority, our sister circuits’ decisions “are pertinent to the question of whether an error is plain.” United States v. Maxwell, 285 F.3d 336, 342 (4th Cir. 2002). In general, however, “[w]hen we have yet to speak directly on a legal issue and other circuits are split, a district court does not commit plain error by following the reasoning of another circuit.” Carthorne, 726 F.3d at 516 (internal quotation marks omitted). In addition, upon finding plain error, this Court has declined to exercise its discretion to recognize that error unless it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Simmons, 11 F.4th at 263 (quoting United States

1. Olano, 507 U.S. 725, 736 (1993)). III.

Despite failing to object to the enhancements below, Hodges now assails the district court’s application of U.S.S.G. § 2G1.3(b)(3)(A) and (b)(5) as patently wrong. In his view, the enhancements’ use of the term “minor” unambiguously references actual, as opposed to fictitious, people. Because the language of the enhancements are clear in his view, he contends that the Guidelines commentary improperly expands that definition to include fictitious minors. As a result, he argues that the district court’s reliance on the commentary 5

definition was plain error necessitating reversal. We disagree and conclude that the term “minor,” as used in the enhancements, is ambiguous and the Guidelines’ definition of “minor” is entitled to deference. Under the Guidelines, an individual convicted under 18 U.S.C. § 2422(b) has a base offense level of 28. U.S.S.G. § 2G1.3(a). The Guidelines also provide offense level enhancements based on specific offense characteristics related to qualifying convictions. Two of those offense characteristics are at issue in this appeal. First, § 2G1.3(b)(3)(A) permits a two-level enhancement where “the offense involved the use of a computer or an interactive computer service to [] persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct.” Second, § 2G1.3(b)(5) permits an eight-level enhancement where “the offense involved a minor who had not attained the age of 12 years.” Notably, however, the Guidelines do not define the term “minor.” The Guidelines’ commentary, though, provides that this term “means (A) an individual who had not attained the age of 18 years; (B) 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 (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.” U.S.S.G. § 2G1.3 cmt. n.1. As a reminder, to establish plain error, Hodges must clear numerous hurdles. See

Simmons, 11 F.4th at 263. The first of those hurdles requires a showing that there was error, id., and the second requires showing that such error was “clear” or “obvious,” id. at 267.

Hodges stumbles right out of the gate, failing to show any error—plain or otherwise—in the district court’s application of the commentary’s definition of “minor.” Here, the question is whether the term “minor” “has a plain and unambiguous meaning with regard to the particular dispute in the case.” United States v. Mitchell, 120 F.4th 1233, 1241 (4th Cir. 2024) (citation omitted). To put a finer point on it, we must determine if the term “minor,” as used in the relevant enhancements, unambiguously excludes fictitious minors. In evaluating a dispute as to the meaning of the Guidelines and accompanying commentary, “our first stop” is analyzing whether “the meaning of the relevant Guideline is . . . genuinely ambiguous.” Id. at 1240. “If it is, we next consider whether the commentary’s relevant definition falls within the zone of ambiguity such that it should be given deference.” Id. (cleaned up). If the definition falls within the zone of ambiguity, “we independently inquire as to whether the commentary’s character and context entitles it to controlling weight.” United States v. Boler, 115 F.4th 316, 328 (4th Cir. 2024) (cleaned up). “If the Guideline is not genuinely ambiguous, however, we cannot defer to the commentary.” Mitchell, 120 F.4th at 1241. Without ambiguity, “there is no plausible reason for deference,” so the relevant provision “just means what it means—and the court must give it effect, as the court would any law.” Kisor v. Wilkie, 588 U.S. 558, 574–75 (2019). With that in mind, we turn to the text of the Guidelines. “We begin with the ordinary meaning of the term ‘[minor].’” Boler, 115 F.4th at 323. Hodges cites a host of dictionary definitions. For instance, Black’s Law Dictionary defines “minor” as “[s]omeone who has not reached full legal age; a child or juvenile under 18 years of age.” Minor, Black’s Law 7

Dictionary (12th ed. 2024). “Minor” is also defined as “a person who is not yet old enough to have the rights of an adult,” Minor, Merriam-Webster, https://www.merriam- webster.com/dictionary/minor https://perma.cc/UL7A-A7BM, and “someone who is too young to have the legal responsibilities of an adult,”

Minor, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/minor

https://perma.cc/B794-LPGE. These varied definitions leave much to be desired. Some of them fail to specify an age range for a “minor,” but more fundamentally for this appeal, none of them specify whether a minor must categorically be a real person, as opposed to a fictitious person. See Boler, 115 F.4th at 324–25 (concluding there was “no single right answer to the meaning of loss based on its plain reading” when the term had “multiple and varied definitions”); Mitchell, 120 F.4th at 1242 (explaining that “[d]ictionary definitions of [a] term [] are of little help [when] they could point to either of the meanings” proposed by the parties). Indeed, as the Government pointed out during oral argument, many beloved fictional characters, such as Scout Finch or Harry Potter, would fall squarely within the above-recited definitions of a “minor.” That said, we may not read language “in isolation,” so we also consider the term “minor” “in [its] context and with a view to [its] place in the overall [] scheme.” Boler, 115 F.4th at 325. Here, that overall scheme bolsters our conclusion that the use of the word minor is ambiguous in terms of whether it is limited to real human beings. Hodges’ enhancements involved (1) the use of a computer service to “persuade, induce, entice, coerce, or facilitate the travel of[ a] minor to engage in prohibited sexual conduct,” U.S.S.G. § 2G1.3(b)(3)(A); and (2) involvement of “a minor who had not attained the age 8

of 12 years,” id. § 2G1.3(b)(5). Neither offense characteristic unambiguously requires that an actual minor be involved in the offense, as evidenced by the fact pattern underlying this very appeal. Thus, the plain language of the Guidelines does not resolve the ambiguity of the term “minor,” as used in § 2G1.3(b)(3)(A) and (b)(5). Further, it is particularly relevant that the relevant provisions of the Guidelines apply to Hodges based on his “convict[ion] under 18 U.S.C. § 2422(b),” U.S.S.G. § 2G1.3(a)(3), which has itself been interpreted to define minor as including fictitious minors. Under that statute, Hodges was convicted of attempting to entice a minor, i.e., “any individual who has not attained the age of 18 years,” to engage in criminal sexual activity. 18 U.S.C. § 2422(b). Critically, as our sister circuits have recognized, “for an attempt offense under § 2422(b), it is not necessary for the intended target to be a real minor so long as the defendant believed that the target was a real minor, intended to entice the target into illegal sexual activity, and took a substantial step to carry out his plan.” Christopher v. United

States, 148 F.4th 885, 895 (7th Cir. 2025); see, e.g., United States v. Root, 296 F.3d 1222,

1227 (11th Cir. 2002) (rejecting Root’s argument that an actual minor must be involved to satisfy § 2422(b) and concluding that his “belief that a minor was involved is sufficient to sustain an attempt conviction”), superseded on other grounds as recognized in United

States v. Jerchower, 631 F.3d 1181, 1186–87 (11th Cir. 2011); United States v. Roman,

795 F.3d 511, 516 (6th Cir. 2015) (holding that § 2422(b) applies where a defendant communicates with a law enforcement officer acting as an intermediary about a fictional minor “if the defendant’s communications with that intermediary are intended to persuade, induce, entice, or coerce the minor child’s assent to engage in prohibited sexual activity”). 9

This Court has also recognized as much, albeit in dicta and unpublished opinions.

See United States v. Kelly, 510 F.3d 433, 441 & n.7 (4th Cir. 2007) (holding that 18 U.S.C.

§ 2423(b) does not require an actual child’s involvement and noting that “[w]e and other circuits have reached the same result in connection with 18 U.S.C. § 2422(b)”); see also

United States v. Kaye, 243 F. App’x 763, 766 (4th Cir. 2007) (per curiam) (affirming the

district court’s ruling that no actual minor must be placed at risk for a conviction under § 2422(b)). That Hodges’s underlying conviction under § 2422(b)—which placed him within the ambit of § 2G1.3(b)—is permissible when the offense involves a fictitious minor significantly undermines his argument that “minor,” as used in § 2G1.3(b), unambiguously excludes fictitious minors. Indeed, it would be more than anomalous if a “fictitious” minor would be covered by the statute but excluded from the applicable enhancement. Last, we observe that the purpose of the enhancements cuts against Hodges’s narrow understanding of the term “minor.” By their plain language, the provisions at issue focus on the defendant’s conduct rather than harm inflicted upon a victim. See U.S.S.G. § 2G1.3(b)(3)(A) (permitting application of the enhancement where “the offense involved the use of a computer or an interactive computer service to [] persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct”); § 2G1.3(b)(5) (same when “the offense involved a minor who had not attained the age of 12 years”). It strains credulity that application of an enhancement aimed at a defendant’s

conduct when engaging in specific acts would rise and fall based on whether the offense

involved an actual minor—a fact entirely outside of the defendant’s control. See United 10

States v. DeCarlo, 434 F.3d 447, 459 (6th Cir. 2006) (holding that a Guidelines provision

applies when an offense involves a fictitious minor if the provision “is not dependent on the effect of the defendant’s conduct,” but does not apply if “the plain language . . . requires that the defendant’s conduct have an actual effect on someone”). In other words, Hodges’s interpretation of “minor” as excluding fictitious minors is inconsistent with the provisions’ purpose of capturing specific conduct—not harm. See Boler, 115 F.4th at 327 (rejecting the appellant’s “limited reading of ‘loss’” in part because “[t]he purpose of the Guidelines [] cuts against” it). We decline to endorse an interpretation that runs afoul of that purpose. In sum, the dictionary definitions are silent as to whether “minor” must be an actual person, the plain language of the Guideline provisions themselves are unhelpful, there is broad consensus that § 2422(b) applies to fictional minors, and the provisions capture conduct rather than harm. Accordingly, we conclude that the use of “minor” in U.S.S.G. § 2G1.3(b)(3)(A) and (b)(5) is ambiguous as to whether it includes fictional minors. With that determination in hand, “we next consider whether the commentary’s relevant definition falls within the ‘zone of ambiguity’ such that it should be given deference.” Mitchell, 120 F.4th at 1240 (cleaned up). To do so, “we ask whether the commentary falls ‘within the bounds of reasonable interpretation’ by the relevant agency; here, the Commission.” Boler, 115 F.4th at 327. This is an easy yes. The commentary’s definition of “minor” comports with our sister circuits’ and, at least in dicta, this Court’s understanding of the term as used in the underlying statute. See Kelly, 510 F.3d at 441 n.7 (collecting cases). And as this Court recognized recently, the commentary to the Guidelines constitutes the Commission’s “official position” and “reflects [its] ‘substantive expertise’ 11

. . . and [] ‘fair and considered judgment.’” Boler, 115 F.3d at 328 (citation omitted); see

Kisor, 588 U.S. at 577 (noting that an agency’s interpretation is entitled to deference when

it is the agency’s “official position” and “implicate[s] its substantive experience”). We now confirm and adopt that position in a published decision. To recap, a genuine ambiguity exists as to the meaning of “minor” in § 2G1.3(b)(3)(A) and (b)(5) and the commentary is deserving of deference. Therefore, in relying on the commentary’s definition of “minor” to apply the enhancements to Hodges’s conduct, the district court did not err. All that said, even if the district court had erred when applying the challenged enhancements, we could not conclude that any such error was plain. Recall that, to show an error is plain, this Court generally requires that Supreme Court or this Court’s precedent establishes such error. Carthorne, 726 F.3d at 516. If that precedent does not exist, a survey of our sister circuits may reveal that an error was plain. Maxwell, 285 F.3d at 342. At oral argument, Hodges’ counsel conceded that he is unaware of any case demonstrating that the district court’s application of U.S.S.G. §§ 2G1.3(b)(3)(A) and (b)(5) was erroneous because the underlying conviction involved a fictitious minor. Oral Argument at 4:02–4:35, United States v. Hodges, No. 24-7186 (4th Cir. Jan. 30, 2026). We concur, as our review similarly revealed a dearth of case law from this Court or the Supreme Court on this issue. So, this is not a case where “the settled law of the Supreme Court or this circuit establishes that an error has occurred.” Maxwell, 285 F.3d at 342 (citation omitted).

Therefore, we look to our sister circuits to discern whether this is one of the “exceedingly rare” situations when plain error occurs because “our sister circuits have uniformly taken a position on an issue that has never been squarely presented to this Court.”

Carthorne, 726 F.3d at 516 n.14 (citation omitted). Again, Hodges comes up short. He does

not cite any such precedent vindicating his interpretation of “minor” in U.S.S.G. §§ 2G1.3(b)(3)(A) or (b)(5). In fact, in an unpublished opinion, the Second Circuit rejected an argument that “minor,” as used in § 2G1.3(b)(3), only applied to actual minors. United In so States v. Seeley, No. 19-4320, 2021 WL 5049457, at *3 (2d Cir. Nov. 1, 2021). 3 doing, the Second Circuit concluded that the enhancement was “correctly applied” because “[t]he Guidelines definition of ‘minor,’ including ‘fictitious’ minors , . . . [was] consistent with [its] interpretation of Section 2422(b)” as not requiring involvement of an actual minor. Id. Given the lack of case law from the Supreme Court, this Court, or our sister circuits supporting Hodges’s position, we could not conclude that the district court plainly erred in applying §§ 2G1.3(b)(3)(A) and (b)(5) based on his conduct.

• * * * * To reiterate, we conclude that the district court did not err in applying § 2G1.3(b)(3)(A) and (b)(5) to Hodges based on his conviction for attempting to entice

The Second Circuit also rejected the argument that U.S.S.G. § 2G1.3(b)(5) “can 3 be applied only to completed offenses, not attempts.” Seeley, 2021 WL 5049457, at *3. It reasoned that, “[b]ecause ‘minor’ is defined to include ‘fictitious’ minors, the enhancement necessarily applies to attempts as well as completed crimes,” such as the appellant’s conviction for “attempting to entice a fictitious minor whom he believed to be 11 years old into criminal sexual conduct.” Id. 13

fictitious minors to engage in criminal sexual conduct. What’s more, even if the district court had erred, we conclude that it did not commit plain error given the absence of any authority supporting Hodges’s narrow interpretation of “minor,” as used in the enhancements at issue. Accordingly, no reversible error occurred in this case.

For the reasons set forth above, the judgment of the district court is

AFFIRMED.