The 7th Circuit Court of Appeals has upheld the 210-month sentence received by a defendant on remand for attempting to coerce or entice a minor to engage in sexual activity.
In United States of America v. Erik D. Zahursky, No. 11-2054, Erik D. Zahursky was originally sentenced to 262 months for his conviction, which was based on his attempts to meet and have sexual relations with what he believed to be two 14-year-old girls he met online. He appealed that sentence, which the 7th Circuit vacated because it found the sentencing enhancement imposed based on Section 2G1.3(b)(2)(B) of the sentencing guidelines was inapplicable. At that time, Zahursky didn’t challenge the pseudo-count enhancement based on Section 2G1.3(d).
The District Court, relying in part on Section 2G1.3(d) of the guidelines, sentenced him to 210 months in prison. Zahursky again appealed, arguing that the earlier 7th Circuit ruling not only precludes the section (b) enhancement, but also the section (d) enhancement.
“Zahursky chose in his first appeal to focus on the undue influence enhancement described in § 2G1.3(b)(2)(B). If he had complained on that appeal about the section (d) pseudo-count enhancement, then we might have ordered an evidentiary hearing on Holly’s identity or age and remanded for resentencing on these grounds as well. But he did not, and so he has forfeited this line of attack,” wrote Judge Diane Wood.
Also, the District Court was not obliged to consider his new argument on remand, Wood noted.