Christensen

Appellant Mark Andrew Christensen (Christensen) was convicted and sentenced to 210 months’ imprisonment for enticement of a minor to engage in sexual activity and obstruction of justice for failing to appear at trial. On appeal, Christensen initially asserted that the district court erred in applying a two-level enhancement under United States Sentencing Guidelines (U.S.S.G.) § 2G1.3(b)(2)(B) (2005) for unduly influencing a minor to engage in prohibited sexual conduct. Christensen relied on precedent from the Sixth and Seventh Circuits to argue that the enhancement should not apply where the “minor” is actually an undercover officer posing as a minor. See United States v. Chriswell, 401 F.3d 459, 469 (6th Cir.2005); United States v. Mitchell, 353 F.3d 552, 562 (7th Cir.2003). In doing so, he argued that we should reject the contrary view of the Eleventh Circuit in United States v. Vance, 494 F.3d 985, 996 (11th Cir.2007).

After the case was submitted, the United States Sentencing Commission (the “Commission”) amended the Commentary to § 2G1.3(b)(2)(B) such that it now precisely reflects Christensen’s argument: namely, that § 2G1.3(b)(2)(B)’s enhancement should not be applied…