United States of America v. Peter Zagorski , Also Known As Piotr Zagorski

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 26, 2015 Decided December 1, 2015
No. 12-3084
UNITED STATES OF AMERICA ,
APPELLEE
v.
PETER ZAGORSKI , ALSO KNOWN AS PIOTR ZAGORSKI ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cr-00351)
Jonathan S. Jeffress, Assistant Federal Public Defender,
argued the cause for appellant. With him on the brief was A.J.
Kramer, Federal Public Defender.
James A. Ewing, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen, Jr., U.S. Attorney at the time the brief was filed, and
Elizabeth Trosman, Elizabeth H. Danello, and David B. Kent,
Assistant U.S. Attorneys.
Before: SRINIVASAN , Circuit Judge, and WILLIAMS and
GINSBURG, Senior Circuit Judges.

-- 1 of 7 --

2
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Peter Zagorski appeals
the sentence he received after pleading guilty to distributing
child pornography. Zagorski argues that the district court
miscalculated the applicable Sentencing Guidelines range by
erroneously applying two provisions: a cross-reference to the
guideline governing production of child pornography,
U.S.S.G. § 2G2.2(c)(1) (the “cross-reference”), and a two-
level enhancement for using a computer to “solicit
participation with a minor” in the production or live
transmission of child pornography, id. § 2G2.1(b)(6)(B) (the
“computer enhancement”). We find no error and affirm.
* * *
In October 2011 Zagorski began corresponding via
internet chat with a man who claimed to have control over a
12-year-old girl. Unbeknownst to Zagorski, the man was an
undercover police detective named Timothy Palchak. After
learning that Zagorski had videos of child pornography,
Palchak proposed a trade: a live “webcam” show featuring
Palchak and the purported minor in exchange for Zagorski’s
child pornography. Zagorski agreed.
Over the course of approximately three weeks, Zagorski
repeatedly expressed interest in the webcam show and
discussed sending child pornography to Palchak as payment.
Zagorski told Palchak that he wanted the child to appear nude
or “wear a skirt and lift[] it few times” on webcam. Joint
Appendix (“J.A.”) 70. He sent Palchak a total of six videos of
child pornography, including three on the day Palchak
proposed the trade. On one occasion, Zagorski spoke with the
purported minor—impersonated by an FBI agent—on the
telephone.

-- 2 of 7 --

3
Zagorski was arrested and charged with one count of
distribution of child pornography, in violation of 18 U.S.C.
§ 2252(a)(2), and one count of attempted coercion and
enticement of a minor, in violation of 18 U.S.C. § 2422(b).
Pursuant to a plea agreement, Zagorski pleaded guilty to the
§ 2252(a)(2) count and the § 2422(b) count was dismissed at
sentencing. In calculating the applicable Guidelines range,
the district court applied the cross-reference and the computer
enhancement based on Zagorski’s efforts to procure the
webcam show. Although the resulting calculation yielded an
advisory sentence of 240 months (the statutory maximum
term) based on an offense level of 39 and a criminal history
category of I, the court sentenced Zagorski to 99 months in
prison. The court also imposed a 120-month term of
supervised release and a $100 special assessment.
At stake here is whether Zagorski is subject to a
Guidelines offense level of 37 (with a corresponding advisory
sentence of 210-240 months—actually a range of 210-262
months capped by the statutory maximum) or, as the district
court found, of 39 (with a corresponding advisory sentence of
240 months—similarly a range, 262-327 months, capped by
the statutory maximum). The guideline that usually governs
Zagorski’s offense of conviction is Guidelines § 2G2.2 (the
pornography “distribution guideline”), which with its
applicable “offense characteristics” and other adjustments
yields an offense level of 37. The challenged cross-reference,
if it applies, reroutes the offense level calculation from the
distribution guideline to Guidelines § 2G2.1 (the pornography
“production guideline”), which provides for a higher base
offense level but generally fewer enhancements—but those
few include the challenged computer enhancement. Under the
production guideline Zagorski’s total offense level is 37 if the
computer enhancement does not apply, 39 if it does.
Accordingly, to affirm we must conclude both that Zagorski
was subject to the production guideline (by virtue of the cross-

-- 3 of 7 --

4
reference) and that the computer enhancement was correctly
applied. We address each in turn.
Cross-reference. Guidelines § 2G2.2(c)(1) directs the
sentencing judge to apply § 2G2.1 if, as relevant here, “the
offense involved causing . . . a minor to engage in sexually
explicit conduct for the purpose of . . . transmitting a live
visual depiction of such conduct.” The commentary says that
the cross reference “is to be construed broadly.” U.S.S.G.
§ 2G2.2 Application Note 5 (2011).
We assume without deciding two propositions that
Zagorski has not challenged: first, that the activity in which
Zagorski expected the purported minor to engage on webcam
qualifies as “sexually explicit conduct,” and, second, that the
cross-reference encompasses attempts. Under these
assumptions, the district court did not err in finding that
Zagorski’s conduct implicated the cross-reference: By
offering to send pornographic videos in exchange for a live,
sexually explicit webcam performance by a 12-year-old girl,
Zagorski demonstrated his intent to “caus[e] . . . a minor to
engage in sexually explicit conduct for the purpose of . . .
transmitting a live visual depiction of such conduct.” And by
actually sending such videos to the minor’s purported
custodian, Zagorski took a “substantial step” toward causing
this result. See United States v. Hite, 769 F.3d 1154, 1162
(D.C. Cir. 2014) (defining “attempt” as a “substantial step”
coupled with “the requisite criminal intent” (citation
omitted)). Although of course Palchak’s actions were causes
of the events that transpired, that doesn’t exclude a causal role
for Zagorski.
Relying on Hite, Zagorski argues that his actions did not
amount to an attempt to “entice” or “persuade” the purported
minor to participate in the webcam show. He points out that
Palchak presented the minor as ready and willing to engage in

-- 4 of 7 --

5
sexual activity—and that, as a result, he never had to take any
steps to “transform or overcome” her will. Hite, 769 F.3d at
1161. But Hite’s insistence that there be evidence that the
defendant sought to “transform or overcome the will of a
minor,” id., rested on verbs in 18 U.S.C. § 2422(b)—
“persuade,” “induce,” “entice,” “coerce”—that are more
demanding than “cause,” which is among the verbs in
Guidelines § 2G2.2(c)(1). See also United States v. Laureys,
653 F.3d 27, 40 (D.C. Cir. 2011) (Brown, J., dissenting on an
issue the majority did not reach) (identifying cases reading
§ 2422(b) to require “an attempt to bend the child-victim’s
will”). Here, under the usual meaning of the word “cause,”
see, e.g., United States v. Whitesell, 314 F.3d 1251, 1255
(11th Cir. 2002), Zagorski attempted to cause a minor to
engage in particular conduct by bartering with her purported
custodian.
Computer Enhancement. An affirmative finding under
Guidelines § 2G2.2(c)(1) potentially triggers Guidelines
§ 2G2.1(b)(6)(B), providing as follows:
If, for the purpose of producing sexually explicit material
or for the purpose of transmitting such material live, the
offense involved . . . the use of a computer or an
interactive computer service to (i) persuade, induce,
entice, coerce, or facilitate the travel of, a minor to
engage in sexually explicit conduct, or to otherwise
solicit participation by a minor in such conduct; or (ii)
solicit participation with a minor in sexually explicit
conduct, increase by 2 levels.
The commentary explains that this provision can be triggered
by the use of a computer to communicate “with a person who
exercises custody, care, or supervisory control of the minor.”
U.S.S.G. § 2G2.1 Application Note 4(B).

-- 5 of 7 --

6
In applying this provision, the district court relied in part
on a phone call between Zagorski and the minor. In his
opening brief Zagorski argues that the phone was not a
“computer” as required by this guideline. See U.S.S.G.
§ 2G2.1 Application Note 1 (adopting the definition of
“computer” in 18 U.S.C. § 1030(e)(1)); 18 U.S.C.
§ 1030(e)(1) (the term “computer” includes “an electronic . . .
or other high speed data processing device performing logical,
arithmetic, or storage functions” but not “an automated
typewriter or typesetter, a portable hand held calculator, or
other similar device”). Two circuits have said that a cell
phone is a computer within the meaning of this provision,
United States v. Mathis, 767 F.3d 1264, 1283 (11th Cir.
2014); United States v. Kramer, 631 F.3d 900, 902-03 (8th
Cir. 2011), but the government has not contested Zagorski’s
assertion, and we disregard the phone call as potential support
for applying the enhancement.
But even without the call Zagorski’s computer activities
are sufficient. The Second Circuit has quite reasonably
interpreted the oddly worded subsection (ii)—“solicit
participation with a minor in sexually explicit conduct”—as
“addressing a situation in which one person solicits another
person to engage in sexual activities with a minor.” United
States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009). Here Zagorski
repeatedly broached the subject of the webcam show in his
online chats with Palchak, offered child pornography as
payment for the show, and in fact sent Palchak six
pornographic videos via the internet. In doing so, Zagorski
used a computer in the way contemplated by the guideline.
Zagorski argues that his conduct cannot amount to
solicitation because Palchak initially proposed the webcam
exchange. Not so: an initial offer does not preclude
subsequent solicitation by the offeree. Contrary to Zagorski’s
contention, his conduct was not purely “reactive” (Appellant’s

-- 6 of 7 --

7
Br. 40); on several occasions, he proactively inquired about
the webcam show and offered to send (and in fact did send)
child pornography in order to assure that the show would go
on. See, e.g., J.A. 73 (“so when we gonna do cam”); J.A. 80
(“when u ready to do cam i send u that [video]”); J.A. 85
(“how about cam”); J.A. 87 (“i make u a deal if u give me
good cam i tell where u can get porn from i just found out
today”).
At oral argument, Zagorski’s counsel suggested that the
computer enhancement is not implicated because Zagorski did
not expect Palchak to engage in sex with the purported minor
as part of the webcam performance. But the relevant inquiry
is whether Palchak was solicited to “participat[e]” with the
purported minor in “sexually explicit conduct,” not sex. We
noted at the outset that Zagorski hasn’t disputed the
government’s position that the proposed webcam behavior of
the minor qualified as “sexually explicit conduct.” There is
also no dispute that Zagorski expected Palchak to appear on
webcam with the minor. Taken together, these facts support a
finding that he solicited Palchak to “participat[e] with a minor
in sexually explicit conduct.”
* * *
The judgment of the district court is
Affirmed.

-- 7 of 7 --