# United States v. Joseph Furey Lusk

> Court of Appeals for the Eleventh Circuit · October 3, 2024 · 119 F.4th 815

URL: https://www.frixlaw.com/law-library/cases/10595956

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** October 3, 2024
- **Citations:** 119 F.4th 815
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 22-12078
____________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH FUREY LUSK,

Defendant-Appellant.

____________________

Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:21-cr-14036-AMC-1
____________________

Before WILSON, LUCK, and LAGOA, Circuit Judges.
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LAGOA, Circuit Judge:
Joseph Lusk pled guilty to attempted enticement of a minor
in violation of 18 U.S.C. § 2422(b) and committing a felony offense
involving a minor while required to register as a sex offender in
violation of 18 U.S.C. § 2260A. At his sentencing, the district court
imposed an enhancement for being a “repeat and dangerous sex
offender against minors” based on Lusk’s prior Florida-state con-
viction for traveling to meet a minor after soliciting a guardian.
The district court sentenced him to 355 months’ imprisonment fol-
lowed by a lifetime of supervised release. Lusk appeals his convic-
tion under § 2260A, the application of the enhancement, and the
reasonableness of his 355-month sentence. After careful review,
and with the benefit of oral argument, we affirm in part, vacate in
part, and remand to the district court for resentencing.
I. FACTUAL & PROCEDURAL BACKGROUND
A. Lusk’s Criminal Conduct
In October 2018, Lusk was convicted in Florida state court
of traveling to meet a minor after soliciting a parent, legal guardian,
or custodian, in violation of Florida Statute § 847.0135(4)(b). be-
lieved that he had been communicating with a stepparent whose
minor stepchild was “curious about adult things.” The “steppar-
ent” was an undercover law enforcement officer. Lusk expressed
interest in the minor child and sent nude photos of himself to the
officer. When they made a plan to meet up, the officer asked Lusk
to buy a specific candy bar for the twelve-year-old. Lusk bought
the candy bar, and law enforcement arrested him after he left the
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store and drove to the designated undercover location. Lusk was
charged with traveling to meet a minor after soliciting a guardian,
pled no contest, was sentenced to 48-months’ imprisonment fol-
lowed by 72 months of probation, and was required to register as
a sex offender under both federal and Florida law. He was released
from the Florida Department of Corrections on July 5, 2021, after
serving his prison term.
Less than a month after being released from Florida state
prison, Lusk began engaging in predatory sexual conversations
with someone who he believed to be a minor. On August 1, 2021,
Lusk sent a friend request to a user on a social media site called
Moco Space. The user was an undercover investigator from the
Martin County Sheriff’s Office. Once they linked as “friends,” the
investigator asked Lusk to contact her on a texting app called Kik,
where they chatted back and forth for four weeks. Once they were
connected on Kik, the investigator told Lusk that she was a fifteen-
year-old girl. Lusk asked if she liked older men and whether her
mother knew that she was dating older men. He sent the investi-
gator pictures of his face and asked for her pictures in return.
Lusk’s messages soon became graphic: he told the investigator he
would like to “get naked and ruff [sic] house” and that he wanted
to “bend u [sic] over my knee and spank u.” He sent her YouTube
videos of young girls dancing and posing provocatively and asked
if the investigator was “going to shake ur [sic] booty like that.”
Lusk asked if she was “naked yet” and scolded her for not having
shown her naked body to him. When the investigator mentioned
that it was raining out, Lusk suggested she “run around in it with
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a white t-shirt [and] no bra on.” The investigator said that she had
gotten soaked while running to the mailbox, and Lusk replied, “oh
wow send me a pic lol.” He told the investigator that “maybe one
day soon I can getaway [sic] and come see you.”
The next day, the investigator told Lusk she needed to take a
shower. Lusk replied that he would “love to scrub ur [sic] whole
body for u [sic] and use my tongue too.” He told the investigator
that he was “wild kinky n [sic] freaky in bed” and that he wanted
to “lick n [sic] nibble on ur [sic] luscious boobies and hard nipples
[and] slowly lick on u r [sic] kitty and get it all wet and lick around
ur [sic] booty and make ur [sic] scream for more.” Lusk continued,
telling the investigator that he was “into oral[,] anal bareback[,] give
creampies[,] im [sic] into spanking choking tie n [sic] up using toys
or objects[,] fisting[,] want to try anal fisting too [and] pulling hair.”
Lusk summed up his interests, telling the investigator, “basically I
want a total dirty cum slut in bed.”
Later in their conversation, the investigator told Lusk that
she planned to go swimming at a friend’s house. Lusk stated that
he would “just love to see video of u 2 [sic] playing if that’s what
yall [sic] do with each other.” He asked the investigator if she was
bisexual and suggested that she “experiment to see what u [sic] like
and don’t like.” Several days later, Lusk sent the investigator two
photos of his erect penis. On August 18, 2021, Lusk asked the in-
vestigator to send a photo of herself “naked n [sic] shower” and
told her “I want u [sic] naked around me.”
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Based on all this, law enforcement obtained a warrant and
arrested Lusk at his home on August 31, 2021. In a post-Miranda
interview, Lusk admitted to chatting with the investigator, whom
he believed to be a fifteen-year-old child, on social media. He also
admitted that he sent photos of his penis to the investigator and
asked for pictures of her “a couple of times.” He also acknowl-
edged that he was a registered sex offender at the time.
A grand jury then returned an indictment for attempted en-
ticement of a minor in violation of 18 U.S.C. § 2422(b) (Count 1)
and committing a felony involving a minor while being required to
register as a sex offender in violation of 18 U.S.C. § 2260A (Count
2).
B. The Motion to Dismiss
Lusk moved to dismiss Count 2, arguing that the govern-
ment could not convict him because his conduct did not involve an
actual minor. In his view, because § 2260A does not criminalize
attempting to commit a felony involving a minor—but only the
completed offense—the involvement of a minor is a necessary ele-
ment of the charge. Lusk acknowledged, though, that this position
is foreclosed by United States v. Slaughter, 708 F.3d 1208 (11th Cir.
2013), 1 and conceded that he was only preserving the issue in case

1 Slaughter holds that § 2260A does not “require the involvement of an actual

minor when that violation is predicated on a violation of § 2422” because “a
violation of § 2422(b) does not require an actual minor due to its attempt
clause.” 708 F.3d at 1215 (citing United States v. Root, 296 F.3d 1222, 1227 (11th
Cir. 2002)).
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Slaughter is overturned. The government responded, arguing that
Slaughter is binding and that Lusk’s conduct—communicating with
a person he believed to be a minor and asking the “minor” to create
sexually explicit images—was sufficient to sustain a conviction.
At a hearing on the motion to dismiss, the district court
agreed that Slaughter controlled and acknowledged that Lusk raised
the issue for preservation purposes. Lusk agreed that he was
merely preserving the argument and rested on his written motion.
The government likewise rested on its papers. The district court
denied the motion to dismiss Count 2 in light of Slaughter and is-
sued a paperless order to the same effect.
Lusk then pled guilty to Counts 1 and 2, and, in his proffer,
Lusk agreed to the facts described above. The district court ac-
cepted Lusk’s plea and adjudicated him guilty. The plea agreement
was conditional and provided that Lusk would be permitted to ap-
peal the district court’s order denying his motion to dismiss Count
2 on the basis that his violation of § 2260A did not involve an actual
minor.
C. Lusk’s Sentencing
Before sentencing, a probation officer prepared a presen-
tence investigation report (“PSI”) incorporating the same facts
Lusk admitted in his proffer. The PSI explained that Counts 1 and
2 could not be grouped because § 2260A prescribes a ten-year term
of imprisonment that runs consecutively to any other sentence and
because U.S.S.G. § 3D1.1(b)(1) prohibits grouping of counts that
require consecutive sentences. As to Count 1, U.S.S.G. §
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2G1.3(a)(3) set Lusk’s base offense level at 28. The PSI then added
two levels pursuant to U.S.S.G. § 2G1.3(b)(3)(A) because the offense
involved a computer, increasing his offense level to 30. The PSI
then determined that Lusk was a repeat and dangerous sex offender
against minors based on his 2018 Florida conviction for traveling to
meet a minor after soliciting a guardian. Under U.S.S.G. §
4B1.5(a)(1), therefore, his offense level became 37. The PSI then
deducted two points for acceptance of responsibility, resulting in a
total offense level of 35.
The PSI then considered Lusk’s prior convictions.2 His 2018
Florida conviction warranted three criminal history points. The
PSI added an additional two criminal history points because Lusk
committed the instant offense while still serving part of his sen-
tence (probation) for that 2018 conviction. His five criminal history
points placed him in criminal history category III. But the PSI then
classified Lusk as a repeat and dangerous sex offender against mi-
nors, converting his criminal history category to V under U.S.S.G.
§ 4B1.5(a)(2). 3 The PSI also noted that Lusk had one other pending
charge—a probation violation in the 2018 Florida case.

2 Aside from the convictions we discuss here, Lusk’s criminal history includes

writing bad checks, third degree battery, littering, driving with a suspended
license, failure to appear, theft of property, theft of property as a habitual of-
fender, second degree forgery, and simple assault.
3 U.S.S.G. § 4B1.5(a)(2) provides:

In any case in which the defendant’s instant offense of convic-
tion is a covered sex crime, § 4B1.1 (Career Offender) does not
apply, and the defendant committed the instant offense of
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As to Lusk’s personal characteristics, the PSI stated that Lusk
was placed in foster care as an infant after his biological father
abused him. After three years in foster care, he was adopted by
John and Joan Lusk. Lusk was raised in a middle-class lifestyle and
reported mental and emotional abuse from his adopted father.
Lusk’s adopted mother is deceased, and he has not had contact with
his adopted father in twenty years. Lusk had sporadic contact with
his biological mother after he was adopted but has not had contact
with her since 2020 or 2021. Lusk graduated from high school and
completed a handful of college credits before dropping out due to
financial limitations and a lack of interest. He served in the Army
from 1991 to 1997 and was discharged under honorable conditions,
though his discharge was due to misconduct. Between his arrests
and incarceration, Lusk worked sporadically as a mechanic and la-
borer. Lusk has been married three times and has one adult child
with his second wife and two minor children (at the time of the
PSI) with his third wife. The PSI noted that Lusk owed about
$15,000 in child support for his two younger children and that the
children’s mother did not allow Lusk to contact their daughters af-
ter his 2018 sex-offense conviction.

conviction subsequent to sustaining at least one sex offense
conviction: . . .
(2) The criminal history category shall be the greater of: (A)
the criminal history category determined under Chapter Four,
Part A (Criminal History); or (B) criminal history Category V.
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Regarding sentencing options, for Count 1, the PSI stated
that the statutory minimum term of imprisonment was ten years,
and the maximum was life. Lusk’s guideline range for Count 1 (of-
fense level 35, criminal history category V) was 262–327 months.
As to Count 2, the PSI explained that a mandatory sentence of ten
years must run consecutive to the sentence imposed for Count 1.
As to both Counts 1 and 2, Lusk was subject to a term of supervised
release between five years (required by statute) and life, to run con-
currently on both Counts.
Lusk objected to the enhancement for being a repeat and
dangerous sex offender against minors (the “Chapter 4 Enhance-
ment”). 4 He argued that his 2018 Florida conviction for traveling
to meet a minor after soliciting a guardian, in violation of Florida
Statute § 847.0135(4)(b), could not be considered a “sex offense con-
viction” for purposes of the enhancement because there is no anal-
ogous federal offense that would qualify as a “sex offense convic-
tion.” The government responded that Lusk’s Florida conviction
was substantively similar to a violation of § 2422(b), which crimi-
nalizes the use of interstate commerce to persuade or entice a mi-
nor to engage in sexual activity. And, the government pointed out,
like Lusk’s Florida conviction, a defendant can be convicted under
§ 2422(b) for communicating with an adult intermediary rather

4 Lusk also objected to the PSI’s failure to give him the third point for ac-

ceptance of responsibility. While the PSI credited him two points for ac-
ceptance, it did not give him the third point for timely notifying the govern-
ment of his intent to plead guilty—nor did the government move to award
him the third point. This issue is not germane to the appeal.
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than an actual child. For these reasons, the government maintained
that Lusk’s Florida conviction was properly considered a prior “sex
offense conviction” and the Chapter 4 Enhancement should apply.
In its PSI Addendum, Probation agreed with the govern-
ment. The Addendum explained that, pursuant to U.S.S.G. § 4B1.5
cmt. n.3(A)(ii), a “‘sex offense conviction’ (I) means any offense de-
scribed in 18 U.S.C. § 2426(b)(1)(A) or (B), if the offense was perpe-
trated against a minor; and (II) does not include trafficking in, re-
ceipt of, or possession of, child pornography.” And according to §
2426(b)(1), a “prior sex offense conviction” means a conviction for
an offense either “(A) under this chapter (meaning chapter 117),
chapter 109A, chapter 110, or section 1591”; or (B) under state law
“for an offense consisting of conduct that would have been an of-
fense under a chapter referred to in subparagraph (A) if the con-
duct had occurred within the special maritime and territorial juris-
diction of the United States.” The Addendum described how
Lusk’s prior Florida conviction was similar to his conviction here—
attempted enticement of a minor to engage in sexual activity in
violation of § 2422(b), which is a chapter 117 offense. Thus, the
Addendum reasoned, because the Florida conviction is an offense
under state law consisting of conduct that would have been an of-
fense under a chapter identified in subparagraph A (chapter 117) if
it occurred within federal jurisdiction, the Florida conviction satis-
fies the criteria for the repeat-and-dangerous-sex-offender enhance-
ment under Chapter 4.
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At the sentencing hearing, Lusk renewed his objection to the
Chapter 4 Enhancement and argued that the district court had to
apply the categorical approach to determine whether his Florida
conviction qualified as a sex offense under one of the applicable
federal statutes. 5 Because he solicited a parent rather than a child,
Lusk argued that his conduct did not amount to a sex offense under
federal law. He also argued that the Florida statute of conviction
was broader than any potential federal analogue because the Flor-
ida statute did not require that the enticing communications be
shared with the child. Lusk concluded that the Florida statute was
overbroad in comparison to federal law. The government, for its
part, rested on its written response to Lusk’s objection and added
only its view that the elements of the Florida offense are narrower
than chapter 117, such that any conviction under the Florida statute
would also be a chapter 117 crime. For support, the government
pointed to United States v. Lee, 886 F.3d 1161 (11th Cir. 2018), and
United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004), both affirm-
ing convictions for enticement to commit sexual acts with a child
when the defendants communicated only with an adult, not di-
rectly with a child.
The district court overruled Lusk’s objection as follows:

5 Under the categorical approach, “the sentencer should ask only about
whether ‘the defendant had been convicted of crimes falling within certain
categories,’ and not about what the defendant had actually done.” Mathis v.
United States, 579 U.S. 500, 511 (2016) (quoting Taylor v. United States, 495 U.S.
575, 600 (1990)).
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I’m going to overrule the objection on this
point, I think conducting a categorical analysis of the
relevant statute, which in this case it’s undisputed is
[Florida Statute § 847.0135], subsection 4B, that of-
fense would qualify under – excuse me[,] would qual-
ify as a sex offense within the meaning of the Chapter
4 enhancement.
Clearly, the offense prohibits offenses perpe-
trated at minors and categorically, he was traveling to
meet a minor. The fact that he communicated with a
legal guardian of a minor for the purpose of partici-
pating or at least attempting to participate in prohib-
ited sexual conduct with a minor doesn’t take it out-
side of the bounds of the federal analogue, and with
respect to the commentary in the guidelines itself, I
think clearly the offense was perpetrated at a minor
within the commentary, so for those reasons, the
Court will overrule the objection.
The district court sustained Lusk’s objection to the failure to
include the additional one-level reduction for acceptance of respon-
sibility. It also confirmed with the probation officer that Lusk’s new
guideline range was 235- to 293-months’ imprisonment as to Count
1 and a mandatory consecutive 10-year sentence as to Count 2.
Lusk then raised a new objection—that the consecutive sen-
tences double-counted his Florida conviction because both the
Chapter 4 Enhancement on Count 1, and the entirety of Count 2,
depended on his Florida conviction. Probation explained that, no,
the guideline range related only to Count 1 because the statute
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charged in Count 2 required a consecutive term. Probation di-
rected the district court and the parties to Paragraph 20 of the PSI,
which reads as follows:
According to § 2A3.6(b), since the defendant was con-
victed of 18 U.S.C. § 2260A, the guideline sentence is
the term of imprisonment required by statute. Chap-
ters Three (Adjustments) and Four (Criminal History
and Criminal Livelihood) shall not apply to this count.
Pursuant to § 3D1.1(b)(1), any count for which the
statute specifies a term of imprisonment to be im-
posed and requires that such term of imprisonment
be imposed to run consecutively to any other term of
imprisonment is excluded from being grouped with
any other count. Sentences for such counts are gov-
erned by the provisions of § 5G1.2(a), which states
that the sentence to be imposed on a count for which
the statute specifies a term of imprisonment to be im-
posed and requires that such term of imprisonment
be imposed to run consecutively to any other term of
imprisonment shall be determined by that statute and
imposed independently.
Lusk maintained his objection to consecutive sentences, arguing
that this model “double counts” the conduct underlying his Count
2 conviction because that same conduct was also the basis for the
Chapter 4 Enhancement. Lusk argued that, without that enhance-
ment, the guideline range for Count 1 would be 87 to 108 months.
Counsel then clarified that she understood that the law requires the
district court to impose a ten-year consecutive sentence on Count
2, but that the additional imposition of the Chapter 4 Enhancement
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14 Opinion of the Court 22-12078

as to Count 1 still resulted in “double counting” the conduct under-
lying Lusk’s Florida conviction.
The government responded that the objection was un-
timely and, in any event, Count 2 was a separate offense with a sep-
arate statutory sentencing requirement. Probation clarified only
that, if the Chapter 4 Enhancement were not applied, the guideline
range would be 120 to 150 months, not 87 to 108 months as defense
counsel suggested. The district court then overruled Lusk’s objec-
tion because (1) it was untimely, as the PSI expressly stated at Para-
graph 92 that the sentence for Count 2 would run consecutively to
the sentence for Count 1, and (2) Lusk’s position lacked any legal
support. The district court then recited the proper calculation of
Lusk’s guideline range, addressed remaining objections to the con-
ditions of Lusk’s supervised release, and adopted the PSI.
The government requested a sentence at the high end of the
guideline range, relying especially on Lusk’s recidivism within only
a few weeks of being released from his previous prison sentence.
Because of his repeat-offender status and the month-long duration
of Lusk’s sexual communications with a fictitious child, the gov-
ernment continued, his conduct could not be excused as a mistake
or lapse in judgment. The government also stressed that Lusk was
aware that his behavior was illegal, and—instead of ceasing it—he
tried to hide it by telling the investigator that his probation officer
was visiting as if to prevent “the girl” from texting during the visit. 6

6 We are not sure that this is a faithful reading of the text transcript. Lusk told

the investigator, “My [probation officer] is stopping by after 8. . . . It be ok im
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Lusk requested 240 months’ imprisonment, comprising ten
years as to each count, running consecutively. In support, Lusk re-
iterated that the Chapter 4 Enhancement drastically increased his
guideline range even though that same prior conduct (the Florida
conviction) was already accounted for in his conviction on Count
2. Lusk claimed that he was suffering a “snowball” effect in that his
prior conviction led to (1) the Chapter 4 Enhancement, (2) an addi-
tional enhancement for re-offending while under a criminal justice
sanction, and (3) his Count 2 conviction and consecutive sentence.
Lusk argued that a twenty-year sentence was sufficient because his
crime did not involve an actual minor, he did not harm any minor,
he did not solicit an in-person meeting with the fictitious minor,
and he had not yet had the benefit of sex-offender treatment when
he committed the crime. Lusk also told the district court that he
would be less likely to reoffend in the future because he would have

not doing anything wrong,” and the investigator replied, “Ok I will not txt u
[sic] then.” Lusk did not ask the investigator not to text him or otherwise
suggest he was intentionally hiding the conversation from his probation of-
ficer. But this discrepancy does not weigh on the issues before us on appeal.
And in any event, at other times in their chat, Lusk told the undercover inves-
tigator things like “Ok babe I just want you to know and understand if im
cautious or I get quite [sic] at times I delete ur [sic] messages and photos im
actually not aloud [sic] to talk to anyone under 18.” When the investigator
offered, “we can stop talking I don’t want u [sic] to get into any trouble,” Lusk
replied, “[i]t’s ok I won’t get in trouble. . . . They don’t ask me about my fone
[sic] anyways and if they do they wont find anything.” In other words, there
is evidence in the text log to show that Lusk consciously hid his communica-
tions with the investigator from his probation officer because he knew he was
not allowed to contact minors.
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the benefit of sex-offender treatment while in prison and would be
better positioned to reintegrate into society. In sum, Lusk accepted
that the district court had to impose a ten-year consecutive sen-
tence on Count 2 and asked that, in determining the sentence for
Count 1, the district court consider the weight of that consecutive
sentence and his “double counting” arguments and impose only
ten years (far below the bottom of the guideline range). Lusk de-
clined to speak on his own behalf.
The district court confirmed that it had considered the state-
ments of the parties, the PSI, and the statutory factors set forth in
18 U.S.C. § 3553(a), and the court announced that it would impose
a sentence at the low end of the guidelines, which was sufficient to
satisfy the § 3553(a) factors. In particular, the district court noted
the need to deter Lusk from “his deplorable conduct, soliciting sex
with minors, something which he has now done repeatedly . . .
within a very short period of time of being released from state cus-
tody for a similar offense.” The district court also singled out the
“highly disturbing” nature of Lusk’s communications with the fic-
titious minor, his attempts to conceal his sex offender status in
those communications, and his incomplete cooperation with his
registration requirements, e.g., he had failed to disclose all his so-
cial media accounts. For these reasons, the district court sentenced
Lusk to 235 months’ imprisonment as to Count 1 and 120 months
as to Count 2, to be served consecutively. The district court then
recited the additional terms of his sentence, including no fine, a
lifetime term of supervised release with standard and special con-
ditions, and a $200 special assessment. Lusk’s counsel preserved
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22-12078 Opinion of the Court 17

objections to the procedural and substantive reasonableness of the
sentence. This appeal now ensues.
II. STANDARDS OF REVIEW
“We review de novo the interpretation and application of
the Sentencing Guidelines.” United States v. Cingari, 952 F.3d 1301,
1305 (11th Cir. 2020). And we review de novo questions of statu-
tory interpretation. Slaughter, 708 F.3d at 1214. We review the sub-
stantive reasonableness of a sentence for abuse of discretion.
United States v. Curtin, 78 F.4th 1299, 1311 (11th Cir. 2023). In chal-
lenging the reasonableness of a sentence, the defendant “has the
burden of establishing the sentence is unreasonable in light of the
record and the § 3553(a) factors.” United States v. Gonzalez, 550 F.3d
1319, 1324 (11th Cir. 2008).
III. ANALYSIS
Lusk raises three issues on appeal. First, he argues that the
district court erred when it applied the “repeat and dangerous sex
offender against minors” enhancement (the Chapter 4 Enhance-
ment) based on his prior conviction for traveling to meet a minor
after soliciting a guardian, in violation of Florida Statute
§ 847.0135(4)(b). Second, he challenges the procedural and sub-
stantive reasonableness of his total 355-month sentence and life-
time sex-offender registry requirement. Finally, he appeals the dis-
trict court’s denial of his motion to dismiss Count 2 (as contem-
plated in his conditional plea agreement) on the basis that his con-
viction under § 2260A cannot stand because no actual minor was
involved.
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18 Opinion of the Court 22-12078

We address these issues in turn.
A. The Chapter 4 Enhancement Does Not Apply
Lusk first argues that the district court erred when it applied
the “repeat and dangerous sex offender against minors” enhance-
ment—the Chapter 4 Enhancement—based on his prior Florida
conviction for traveling to meet a minor after soliciting a guardian,
in violation of Florida Statute § 847.0135(4)(b). We agree, for rea-
sons we now explain.
We review “de novo the district court’s interpretation of
criminal statutes and sentencing guidelines.” United States v. Kraw-
czak, 331 F.3d 1302, 1305 (11th Cir. 2003). To preserve an issue for
review, a party must raise the issue clearly enough that the district
court understands the objection. United States v. Brown, 934 F.3d
1278, 1306 (11th Cir. 2019). But “once a party has preserved an is-
sue, it may ‘make any argument in support of that claim; parties
are not limited to the precise arguments they made below.’” Id. at
1306–07 (quoting Yee v. City of Escondido, 503 U.S. 519, 534 (1992)).
As a preliminary matter, we reject the government’s argu-
ment that Lusk is entitled only to plain-error review. At sentencing,
Lusk specifically invoked the categorical approach and urged the
district court to follow that approach in determining whether his
Florida state conviction justified the Chapter 4 Enhancement. Lusk
has developed his argument further on appeal, and he properly pre-
served his position that a categorical analysis applies. He is there-
fore entitled to de novo review. See Brown, 934 F.3d at 1306–07.
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22-12078 Opinion of the Court 19

We now turn to the merits. The Chapter 4 Enhancement
applies when:
[T]he defendant’s instant offense of conviction is a
covered sex crime, § 4B1.1 (Career Offender) does
not apply, and the defendant committed the instant
offense of conviction subsequent to sustaining at least
one sex offense conviction.
U.S.S.G. § 4B1.5(a). The application notes provide that:
“Sex offense conviction” (I) means any offense de-
scribed in 18 U.S.C. § 2426(b)(1)(A) or (B), if the of-
fense was perpetrated against a minor; and (II) does
not include trafficking in, receipt of, or possession of,
child pornography.

Id. § 4B1.5 cmt. n.3(A)(ii). 7 And 18 U.S.C. § 2426(b)(1), in turn, pro-
vides that:

7 In his reply brief, Lusk raises the new argument that we should not consider

the guideline comment at all and, instead, should look only to the text of the
guideline itself. But Lusk made no such argument either before the district
court or in his initial brief. We recognize that our en banc decision in United
States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc), came out after Lusk
filed his initial brief, but this is not just a matter of Lusk adding a new citation
to his reply brief. Rather, Lusk raised the entire argument about applicability
of the commentary, for the first time, in his reply brief. He has therefore for-
feited the issue. United States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004)
(“[T]his Court . . . repeatedly has refused to consider issues raised for the first
time in an appellant’s reply brief.”); Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 683 (11th Cir. 2014) (similar). Moreover, this new addition raised in
the reply brief contradicts Lusk’s own position in his initial brief, where he
agrees—based on the commentary—that “for a prior state conviction to
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20 Opinion of the Court 22-12078

[T]he term “prior sex offense conviction” means a
conviction for an offense—
(A) under this chapter [chapter 117], chapter
109A, chapter 110, or section 1591; or
(B) under State law for an offense consisting of
conduct that would have been an offense under
a chapter referred to in subparagraph (A) if
that conduct had occurred within the special
maritime and territorial jurisdiction of the
United States.
Read together, and as relevant to Lusk, the Chapter 4 En-
hancement applies if Lusk’s Florida conviction would have been an
offense under chapters 117, 109A, or 110, or under § 1591, had it
occurred within the federal jurisdiction. So, we turn to the Florida
statute under which Lusk was convicted. Florida Statute
§ 847.0135(4)(b) provides:
Traveling to meet a minor.—Any person who travels
any distance either within this state, to this state, or
from this state by any means, who attempts to do so,
or who causes another to do so or to attempt to do so
for the purpose of engaging in any illegal act de-
scribed in chapter 794, chapter 800, or chapter 827, or

constitute a ‘prior sex offense conviction’ it must criminalize conduct that
would have been an offense under” § 2426(b)(1)(A). All of this is to say, be-
cause Lusk’s Dupree objection was not preserved for our review, we do not
decide it. That is, we leave for another day whether U.S.S.G. § 4B1.5(a) is am-
biguous, and this opinion should not be read to take any position on that ques-
tion.
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22-12078 Opinion of the Court 21

to otherwise engage in other unlawful sexual conduct
with a child or with another person believed by the
person to be a child after using a computer online ser-
vice, Internet service, local bulletin board service, or
any other device capable of electronic data storage or
transmission to:
...
(b) Solicit, lure, or entice or attempt to solicit,
lure, or entice a parent, legal guardian, or cus-
todian of a child or a person believed to be a
parent, legal guardian, or custodian of a child
to consent to the participation of such child in
any act described in chapter 794, chapter 800,
or chapter 827, or to otherwise engage in any
sexual conduct,
commits a felony of the second degree, punishable as
provided in § 775.082, § 775.083, or § 775.084.
Finally, the parties seem to agree that the relevant federal
analogue is found in § 2422(b), which criminalizes coercion or en-
ticement of a child as follows:
Whoever, using the mail or any facility or means of
interstate or foreign commerce, or within the special
maritime and territorial jurisdiction of the United
States knowingly persuades, induces, entices, or co-
erces any individual who has not attained the age of
18 years, to engage in prostitution or any sexual activ-
ity for which any person can be charged with a crimi-
nal offense, or attempts to do so, shall be fined under
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22 Opinion of the Court 22-12078

this title and imprisoned not less than 10 years or for
life.
Here, we reach our first question (and the parties’ first disa-
greement): in determining whether Lusk has a prior conviction for
a sex offense, do we apply a categorical analysis to the Florida stat-
ute? Or do we look at Lusk’s conduct of conviction? 8 The proper
method for assessing a prior conviction for the purposes of the
Chapter 4 Enhancement is a matter of first impression in this Cir-
cuit. We find instructive, however, the Third Circuit’s reasoning in
United States v. Dahl, 833 F.3d 345 (3d Cir. 2016). In Dahl, to decide
whether a prior conviction qualifies as a “sex offense” for purposes
of the Chapter 4 Enhancement, our sister circuit “delve[d] into the
facts to determine whether the victim was a minor, [but] con-
tinue[d] to apply the categorical approach to the underlying ele-
ments of the predicate offense.” Id. at 352.
Dahl pled guilty to multiple crimes involving the use of in-
terstate commerce to engage minors in sexual activity. Id. at 348.
He had several prior state-court convictions for sexual offenses
against children, so the district court applied the Chapter 4

8 The parties dispute whether our precedent in United States v. Breitweiser, 357

F.3d 1249 (11th Cir. 2004), controls our analysis here. For two reasons, we
conclude that Breitweiser is inapplicable. First, in Breitweiser, we parsed a dif-
ferent enhancement, 18 U.S.C. § 2247, which comprises different language and
a different structure from the enhancement at issue here. See 357 F.3d at 1255–
56; compare 18 U.S.C. § 2247, with U.S.S.G. § 4B1.5(a)(2). Second, even if Breit-
weiser addressed the same enhancement, its analysis would be of little instruc-
tive value because the district court in this case did not rely on extrinsic docu-
ments, like the plea colloquy at issue in Breitweiser. See 357 F.3d at 1255–56.
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22-12078 Opinion of the Court 23

Enhancement to his sentence. Id. On appeal, Dahl argued (for the
first time) that application of this enhancement was plain error be-
cause his state convictions were not categorical sex offenses. Id.
The Third Circuit agreed, in light of the Supreme Court’s directive
that, in determining whether a prior conviction qualifies as a pred-
icate offense for a sentencing enhancement, that a court “must ap-
ply the categorical approach” and “‘look only to the statutory defi-
nitions’—i.e., the elements—of a defendant’s prior offenses, and not
‘to the particular facts underlying those convictions.’” Id. at 349
(emphasis in original) (quoting Descamps v. United States, 570 U.S.
254, 261 (2013)). Only if the statute of conviction requires the same
elements as a federal analogue can the prior conviction serve as a
predicate. Id. But, if the statute of the prior conviction sweeps
more broadly than the federal analogue or generic crime, “a con-
viction under that law cannot count as a predicate, even if the de-
fendant actually committed the offense in its generic form.” Id. at
350 (alterations adopted) (emphasis omitted) (quoting Descamps,
570 U.S. at 261).
And the court in Dahl further explained, the approach does
not change when the enhancement refers to “conduct” in its text.
Id. (citing Johnson v. United States, 576 U.S. 591, 604 (2015)). Rather,
“the important textual reference for triggering the categorical ap-
proach is ‘conviction,’ not ‘conduct.’” Id. (citing Johnson, 576 U.S.
at 604–05); see also Johnson, 576 U.S. at 604–05 (“This emphasis on
convictions indicates that ‘Congress intended the sentencing court
to look only to the fact that the defendant had been convicted of
crimes falling within certain categories, and not to the facts
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24 Opinion of the Court 22-12078

underlying the prior convictions.’” (quoting Taylor v. United States,
495 U.S. 575, 600 (1990))); Mathis v. United States, 579 U.S. 500, 511
(2016) (“By enhancing the sentence of a defendant who has three
‘previous convictions’ for generic burglary, § 924(e)(1)—rather than
one who has thrice committed that crime—Congress indicated
that the sentencer should ask only about whether ‘the defendant
had been convicted of crimes falling within certain categories,’ and
not about what the defendant had actually done.” (quoting Taylor,
495 U.S. at 600)).
The court in Dahl concluded that the categorical approach
applied to a court’s review of a Chapter 4 Enhancement, with one
limited exception: a court may conduct a factual inquiry only to
determine if the qualification giving rise to the enhancement is sat-
isfied. Dahl, 833 F.3d at 351 (citing Nijhawan v. Holder, 557 U.S. 29
(2009)). In reaching this conclusion, the Dahl court cited to Nijha-
wan, the Supreme Court’s decision where the Court held that
where a certain immigration statute applied to people with convic-
tions for aggravated felonies, including “an offense that . . . involves
fraud or deceit in which the loss to the victim or victims exceeds
$10,000,” the district court could properly engage in a “circum-
stance-specific” inquiry to determine whether the qualifying limi-
tation—the $10,000 threshold—was satisfied. 557 U.S. at 38–40
(quoting 8 U.S.C. § 1101(a)(43)(M)(i)). The Supreme Court, how-
ever, only excluded the monetary threshold from categorical treat-
ment, id. at 40, leading the Third Circuit in Dahl to conclude that
the categorical approach should still be applied to the remaining
elements of the statute at issue. See Dahl, 833 F.3d at 352. The
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22-12078 Opinion of the Court 25

Third Circuit reasoned, therefore, that it should “delve into the
facts to determine whether [Dahl’s] victim was a minor, [but] con-
tinue to apply the categorical approach to the underlying elements
of the predicate offense.” Id.
We agree that the Third District’s reasoning in Dahl is the
correct approach, given the guardrails the Supreme Court set out
in Descamps, 570 U.S. 254; Johnson, 576 U.S. 591; and Mathis, 579 U.S.
500. Given these strictures, we are compelled to conclude that the
district court erred in its application of the Chapter 4 Enhancement
because the Florida statute under which Lusk was previously con-
victed is broader than the federal analogue. The Florida conviction
cannot, therefore, qualify as a predicate offense. As we have said,
the Florida statute of Lusk’s prior conviction criminalizes traveling
to meet a minor to engage in “any illegal act described in chapter
794, chapter 800, or chapter 827, or to otherwise engage in other
unlawful sexual conduct” after soliciting a parent or guardian for
access to the minor. Fla. Stat. § 847.0135(4). The least culpable
conduct that could sustain a conviction under this statute appears
to be traveling to meet a minor for the purpose of contributing to
the delinquency of a child, in violation of section 827.04(1)(a). That
is plainly not a sex offense. 9 Because the Florida statute under
which Lusk was previously convicted sweeps more broadly than

9 The statute under which Lusk was convicted also includes in its sweep trav-

eling to meet a minor to engage in neglecting the child, in violation of section
827.03(2)(b) or (d), or to engage in mentally abusing the child, in violation of
section 827.03(2)(c). These crimes, like contributing to the delinquency of a
child, are heinous—but they are not sex offenses.
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26 Opinion of the Court 22-12078

the comparable federal statute, we cannot consider it a categorical
sex offense. 10 See Descamps, 570 U.S. at 261.
B. Lusk’s Sentence is Not Reasonable
Lusk next challenges the substantive reasonableness of his
sentence. He argues that the sentence was unreasonable for the
following reasons: (1) it was based on an improper guidelines cal-
culation; (2) it did not adequately take into consideration the §
3553(a) factors; and (3) it was disproportionate in comparison to
other sex-offender sentences.
We review the substantive reasonableness of a sentence for
an abuse of discretion. United States v. Dixon, 901 F.3d 1322, 1348
(11th Cir. 2018). The party challenging the sentence bears the bur-
den to show that it is unreasonable in light of the record and the

10 We note that, even if we were to find that section 847.0135(4)(b) is divisible,

a modified categorical approach would lead us to the same conclusion. Under
the modified categorical approach, we may consider a limited set of docu-
ments—such as the indictment, jury instructions, plea agreement, and plea
colloquy—to determine which specific crime, comprising which elements, the
defendant committed. See Alvarado-Linares v. United States, 44 F.4th 1334, 1342
(11th Cir. 2022); Shepard v. United States, 544 U.S. 13, 26 (2005). Here, that
exercise is futile because his state-court judgment—the only Shepard docu-
ment the government filed on the record—provides only that he pled nolo
contendere to the charge under section 847.0135(4)(b), with no specific facts.
Moreover, we have taken judicial notice of Lusk’s state-court docket and an
examination of the docket shows that the information under which Lusk was
charged likewise recites the whole of section 847.0135(4)(b) and does not iden-
tify what illegal conduct he sought to commit against the minor. This is to
say, even under a modified categorical approach, we would similarly conclude
that the record does not support application of the Chapter 4 Enhancement.
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22-12078 Opinion of the Court 27

§ 3553(a) factors. United States v. Shabazz, 887 F.3d 1204, 1224 (11th
Cir. 2018). We will vacate a sentence on reasonableness grounds
only if “we ‘are left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the
§ 3553(a) factors.’” United States v. Irey, 612 F.3d 1160, 1190 (11th
Cir. 2010) (en banc) (quoting United States v. Pugh, 515 F.3d 1179,
1191 (11th Cir. 2008)). A district court abuses its discretion “when
it (1) fails to afford consideration to relevant factors that were due
significant weight, (2) gives significant weight to an improper or
irrelevant factor, or (3) commits a clear error of judgment in con-
sidering the proper factors” unreasonably. Id. at 1189 (quoting
United States v. Campa, 459 F.3d 1121, 1174 (11th Cir. 2006) (en
banc)). We consider whether a “sentence is substantively unrea-
sonable under the totality of the circumstances and in light of the §
3553(a) factors.” United States v. Cubero, 754 F.3d 888, 892 (11th Cir.
2014). The district court is required to evaluate all of the § 3553(a)
factors but has ample discretion to assign relative weight to each
factor. United States v. Ramirez-Gonzalez, 755 F.3d 1267, 1272–73
(11th Cir. 2014); United States v. Rosales-Bruno, 789 F.3d 1249, 1254
(11th Cir. 2015). Despite that discretion, a district court’s unjusti-
fied reliance on any one § 3553(a) factor may be indicative of an
unreasonable sentence. Pugh, 515 F.3d at 1191. The district court’s
imposition of a sentence well below the statutory maximum pen-
alty is an indicator of reasonableness. United States v. Croteau, 819
F.3d 1293, 1310 (11th Cir. 2016).
Under § 3553(a), the district court must consider the nature
and circumstances of the offense and the history and characteristics
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28 Opinion of the Court 22-12078

of the defendant; the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense as well as to afford specific
and general deterrence; and the need to avoid unwarranted sen-
tence disparities among defendants with similar records who have
been found guilty of similar conduct. A district court’s decision to
place “substantial weight” on a defendant’s criminal history is con-
sistent with the § 3553(a) factors because five of those factors relate
to criminal history. Rosales-Bruno, 789 F.3d at 1263.
Our analysis begins and ends with Lusk’s argument that the
guideline range was improperly calculated because the Chapter 4
Enhancement should not have applied. As we explained in the pre-
vious section, we agree that Lusk’s sentence was improperly en-
hanced. For this reason alone, we must remand for resentencing
under the correct guideline calculations.11
C. Lusk’s 18 U.S.C. § 2260A Conviction Stands
Finally, Lusk challenges the validity of his conviction under
§ 2260A because no actual minor was involved in the conduct of
his offense. This argument is plainly foreclosed by our binding
precedent in Slaughter. In Slaughter, we held that when a conviction
under § 2260A is predicated on coercion and enticement in viola-
tion of § 2422(b), “a defendant may be convicted even where his

11 Because we agree that Lusk’s sentence arose from an improper enhance-

ment, we need not address his additional argument that the sentence was dis-
proportionate. For the same reason, we decline to consider Lusk’s challenge
to the district court’s consideration of the § 3553(a) factors.
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22-12078 Opinion of the Court 29

conduct did not [otherwise] involve an actual minor.” 708 F.3d at
1216. We are bound by that precedent. See United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008).
Recall that, in this case, Lusk was indicted for and pled guilty
to violating § 2422(b) by attempting to entice a minor using a facil-
ity and means of interstate commerce (Count 1) and to committing
that specific offense while being required to register as a sex of-
fender, in violation of § 2260A (Count 2). Under § 2260A, a person
who is required to register as a sex offender and who commits a
felony offense “involving a minor” under § 2422 (or a variety of
other enumerated sections) “shall be sentenced to a term of im-
prisonment of 10 years in addition to the imprisonment imposed
for the offense under that provision.” Section 2422(b), in turn, pro-
vides that anyone who:
using the mail or any facility or means of interstate or
foreign commerce . . . knowingly persuades, induces,
entices, or coerces any individual who has not at-
tained 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.
Lusk now argues—pursuant to a conditional plea that pre-
served his right to raise this issue on appeal—that the district court
erred in denying his motion to dismiss Count 2 because no actual
minor was involved in his violation of § 2422(b). In Lusk’s view,
the plain text of § 2260A requires that the predicate felony offense
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30 Opinion of the Court 22-12078

be one “involving a minor.” He urges us to interpret the statute
according to its plain text and hold that an offense involving a ficti-
tious minor cannot satisfy § 2260A. Lusk acknowledges that Slaugh-
ter controls but raises the argument for preservation purposes
should Slaughter be overturned in the future.12
Because Slaughter is dispositive, we affirm Lusk’s conviction
for Count 2.
IV. CONCLUSION
Predatory crimes against children “are among the most
egregious and despicable of societal and criminal offenses.” United
States v. Sarras, 575 F.3d 1191, 1220 (11th Cir. 2009). For the reasons
discussed above, we affirm Lusk’s conviction for those acts and af-
firm his sentence as to Count 2. We are compelled, however, to
vacate his sentence as to Count 1 and remand the matter to the
district court for resentencing in accordance with this opinion.
AFFIRMED in part and VACATED in part and
REMANDED for resentencing.

12 When Lusk filed this appeal, a pro se petition for writ of certiorari, challeng-

ing our reasoning in Slaughter, was pending before the Supreme Court. That
petition has since been denied. LaSane v. United States, 143 S. Ct. 340 (2022).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10595956. Public record. Not legal advice.