Volume 86, Number 2

May 2011

Sentencing Entrapment and the Undue Influence Enhancement

Kirstin Kerr O’Connor

With the rapid growth of the Internet, Congress and the United States Sentencing
Commission have expressed concern over the increasing opportunities for sex
predators to target children online. This concern has resulted in the creation of a
complex sentencing regime for such sex offenders. The provision of the Guidelines
that determines the sentence for persons convicted of attempted statutory rape
includes an enhancement for exerting undue influence over the victim. Federal
courts had struggled with whether this enhancement could be applied to those
caught in undercover law enforcement stings in which no real “victim” existed. The
Sentencing Commission intervened in 2009 to specify that the Undue Influence
Enhancement was inapplicable to such undercover operations.
This Note explores the circuit split that prompted the Commission’s clarification
and examines the appropriateness of applying the Undue Influence Enhancement
in undercover Internet stings. In particular, it analyzes the enhancement in light of
entrapment and sentencing entrapment principles and ultimately concludes that
these concerns do not compel a blanket prohibition on utilizing the enhancement in
undercover operations.