Petition for Writ of Certiorari — Alexander Davis, Petitioner v. United States
Supreme Court briefOct 8, 2021
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APPENDIX A
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-1696
_____________
UNITED STATES OF AMERICA
v.
ALEXANDER DAVIS,
Appellant
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 5-18-cr-00105-001)
District Judge: Honorable Edward G. Smith
________________
Argued on June 17, 2020
Before: JORDAN, MATEY and ROTH, Circuit Judges
JUDGMENT
This case came to be heard on the record from the United States District Court for
the Eastern District of Pennsylvania and was argued on June 17, 2020.
Upon consideration whereof,
IT IS ORDERED AND ADJUDGED by this Court that the judgment of the
District Court entered March 28, 2019, be and the same is hereby AFFIRMED.
All of the above in accordance with the Opinion of this Court.
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ATTEST:
s/ Patricia S. Dodszuweit
Clerk
Dated: January 12, 2021
APPENDIX B
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 19-1696
________________
UNITED STATES OF AMERICA
v.
ALEXANDER DAVIS,
Appellant
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 5-18-cr-00105-001)
District Judge: Honorable Edward G. Smith
________________
Argued on June 17, 2020
Before: JORDAN, MATEY and ROTH, Circuit Judges
(Opinion filed: January 12, 2021)
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Robert Epstein
[ARGUED]
Federal Community Defender Office for the
Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Josh A. Davison
Emily McKillip
[ARGUED]
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
________________
OPINION
________________
ROTH, Circuit Judge
Alexander Davis appeals his convictions for attempting
to entice a minor to engage in sexual conduct and for traveling
with intent to engage in illicit sexual conduct. Davis
challenges the sufficiency of the evidence, argues that the
prosecutor made prejudicial statements that misrepresented the
law and deprived him of due process, claims that he was
entrapped as a matter of law, and disputes the application of a
sentencing enhancement. For the reasons that follow, we will
affirm his judgments of conviction and sentence.
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I. Background
A. Factual Background
Davis answered an ad in the “w4m” section of
Craigslist.com, where women look for casual sex with men.
The ad was entitled “Wild child,” and unbeknownst to Davis,
was posted by Officer Daniel Block, who was conducting a
sting operation to catch adults trying to have sex with minors.
The ad stated that the poster was an eighteen-year-old woman
and requested that interested men respond “if you are looking
for fun.”1 Davis responded, representing that “she” was
twenty-five years old and “love[s] to indulge in adult fun.”2
Block replied that he was a fourteen year old. To this, Davis
responded, “That’s ok I know how to be respectful do you
wanna meet today?”3 Block then continued conversing with
Davis through text messages while pretending that he was an
eighth-grade girl named “Marisa.”
Davis and Marisa exchanged text messages over an
eight-day period. Their text exchanges demonstrate Davis’s
attempts to avoid incriminating himself. He showed repeated
reluctance to engage in lewd conversation, expressed fear of
getting caught, stated that that he did not want to have sex with
Marisa because he is gay, and even asked her if she was
1
JA1026.
JA1027. Davis also claimed that he was nineteen during their
conversation. He was actually thirty years old at the time, a
fact he revealed later.
3
JA1029.
2
3
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“affiliated with any type of law enforcement.”4 However, his
responses were also permeated with innuendo and marked by
attempts to sexually groom the fictitious minor. He brought up
topics like her virginity,5 plied her with compliments, asked
when she was not being supervised, repeatedly attempted to get
her to meet him, and offered her gifts including an iPad, an
iPhone, payment of her phone bill, and a new bathing suit.
They eventually agreed that she would skip school and meet
him at a McDonalds near her house in Pennsylvania. They
would spend the day together at the water park in Kalahari
Resorts. With their plan in place, the conversation turned
explicitly sexual and Marisa expressed concern about getting
pregnant. Davis assured her that he would bring “protection”
and personal lubricant.
On the morning of the planned meeting, Davis traveled
from New York to the McDonalds parking lot where he was
arrested by Officer Block. Davis had three condoms in his
pocket. During questioning, Davis confessed to knowing
Marisa was fourteen, that they planned to meet that day, and
that he had brought condoms pursuant to their plan. According
to Davis, he only made these statements after Block misled him
to believe that Marisa was real and that her mother had found
their text exchanges and reported this to the police. During a
cigarette break, Davis volunteered to officers that he became
attracted to young girls when he and his family went to the
Kalahari water park and he saw young girls in their swimsuits.
Davis denies making this statement. On the ride to jail, Davis
voluntarily told Block that he liked 14-year-old girls because
he believed prostitutes were unclean. Davis denies he ever
4
5
JA935-36.
JA904.
4
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made this statement and claims that it was Block who made a
similarly obscene statement.
B. Procedural History
Davis was charged with one count of use of an interstate
facility to attempt to knowingly persuade, induce, entice and
coerce a minor to engage in sexual activity, 18 U.S.C. §
2422(b), and one count of travel in interstate commerce with
intent to engage in illicit sexual conduct with a minor, 18
U.S.C. § 2423(b). At trial, Davis argued that he did not
knowingly entice a minor because throughout their
conversation he believed “Marisa” was an adult who was roleplaying as a fourteen-year-old. He also argued that he was
entrapped to commit the crime; the court instructed the jury on
an entrapment defense. The jury found Davis guilty on both
counts. At sentencing, the court applied a two-point sentencing
enhancement for Davis’s misrepresentation of his age and of
his sexual orientation. He was sentenced to 127 months
imprisonment and five years of supervised release and was
required to register as a sex offender.
Davis appeals, arguing (1) there is insufficient evidence
to uphold both counts of his conviction, (2) the prosecutor
made prejudicial statements that misrepresented the law and
deprived him of due process, (3) he was entrapped as a matter
of law, and (4) his actions did not warrant a sentencing
enhancement.
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II. Discussion
A. Jurisdiction
The District Court had jurisdiction over prosecutions for
violations of federal law pursuant to 18 U.S.C. § 3231. We
have jurisdiction over an appeal from a final decision of a
district court pursuant to 28 U.S.C. § 1291 and an appeal from
a criminal sentence pursuant to 18 U.S.C. § 3742(a).
B. Sufficiency of Evidence
Davis challenges the sufficiency of the evidence for
both counts of his conviction. Appellate courts apply “a
deferential standard in determining whether a jury’s verdict
rests on sufficient evidence,” view the evidence in the light
most favorable to the government, and will uphold the verdict
if “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”6
1. Attempted Enticement of a Minor
Davis first challenges his conviction for attempted
enticement of a minor pursuant to 18 U.S.C. § 2422(b). That
statute criminalizes the use of
the mail or any facility or means of
interstate or foreign commerce . . .
[to]
knowingly
persuade[],
induce[], entice[], or coerce[] any
6
United States v. Ozcelik, 527 F.3d 88, 93 (3d Cir. 2008)
(emphasis omitted).
6
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individual who has not attained 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 . . ..
Because Davis was caught in a sting operation that did not
involve an actual minor, the charge against him was brought
under the attempt provision of § 2422(b).7 A conviction for
attempt under this statute “requires evidence that a defendant
(1) acted with the requisite intent to violate the statute, and (2)
performed an act that, under the circumstances as he believes
them to be, constitutes a substantial step in the commission of
the crime.”8 Davis’s challenge implicates both elements.
Davis claims that the government is required to present
objective evidence that unequivocally corroborates a
defendant’s intent to commit the substantive offense.
According to Davis, the government’s evidence failed to
unequivocally corroborate that he believed he was
communicating with a minor. We disagree with his proposed
standard and with his conclusion.
Unequivocal evidence is not the only way that the
government can prove criminal intent in attempt offenses. In
United States v. Cruz-Jiminez, we explained
7
See United States v. Tykarsky, 446 F.3d 458, 468-69 (3d Cir.
2006); United States v. Pawlowski, 682 F.3d 205, 211 (3d Cir.
2012).
8
Tykarsky, 446 F.3d at 469.
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if substantial steps are the only
proof of the defendant’s criminal
intent, then those steps must
unequivocally evidence such an
intent; that is, it must be clear that
there was a criminal design and
that the intent was not to commit
some non-criminal act.
If,
however, there is evidence of
criminal intent independent of that
demonstrated by the defendant’s
substantial steps in furtherance of
his criminal design, the substantial
steps do not themselves need to be
unequivocally
indicative
of
criminal intent—they must merely
corroborate criminal intent. . . .
[S]ubstantial steps in furtherance
of the criminal act can serve to
corroborate criminal intent or, in
some instances, can themselves
supply unequivocal evidence of
the requisite intent.9
As we noted then, our inquiry is consistent with the Model
Penal Code.10 Importantly, we clarified in Cruz-Jiminez “that
the element of intent is not wholly incorporated into the
9
977 F.2d 95, 102, n.11 (3d Cir. 1992) (emphasis added)
(internal citations and quotation marks omitted); accord United
States v. Hite, 769 F.3d 1154, 1164 (D.C. Cir. 2014).
10
Cruz-Jiminez, 977 F.2d at 102 (citing Model Penal Code §
5.01).
8
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‘substantial step’ that is also essential to the crime of
attempt.”11 Both elements of attempt must be satisfied.
Although sometimes a substantial step may supply
unequivocal evidence of criminal intent, it need not always do
so. If the government presents evidence of criminal intent
independent of a defendant’s substantial step, then the
substantial step need only corroborate criminal intent.12
Davis’s post-arrest confession to knowing Marisa’s age
and their text communications are each evidence of criminal
intent independent of that demonstrated by his substantial
steps,13 and as discussed below, his travel to the prearranged
meeting place and possession of condoms are substantial steps
that corroborate his criminal intent.14 Davis’s argument that he
believed Marisa was a role-playing adult was rejected by the
jury and belied by his post-arrest statements to police, his texts
11
Id. at 102 n.11.
Although Cruz-Jiminez involved an attempted drug
transaction and not the attempted enticement of a minor, 977
F.2d at 97, its discussion of criminal attempt is equally
applicable here. We applied this standard in the context of an
enticement conviction in Tykarsky, even if we did not
expressly state the full rule. See 446 F.3d at 469.
13
See Tykarsky, 446 F.3d at 469 (“The instant messages and
the statements that [the defendant] made to FBI agents upon
his arrest establish [the defendant]’s subjective intent . . . .”);
Cruz-Jiminez, 977 F.2d at 102 n.11 (“[A] defendant’s
confession could furnish evidence of criminal intent
independent from that demonstrated by any substantial steps
taken in furtherance of the crime.”).
14
See Tykarsky, 446 F.3d at 469.
12
9
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expressing concerns about getting caught by law enforcement,
and his grooming tactics tailored for a minor.15
Davis asks us to consider the context in which he was
interviewed by police and to believe that Officer Block’s
misleading statements and threatening manner prompted him
to falsely confess to knowing Marisa’s age. We disagree. The
jury was aware of Davis’s version of his post-arrest statements
and the context surrounding them through his own testimony.
The jury’s verdict demonstrates that they either did not believe
him or did not give his version of the facts much weight. Our
deferential standard of review obliges us to uphold the jury’s
verdict.
2. Interstate Travel for Purpose of Illicit Sexual Conduct
Davis relies on the same theory—that he believed he
was traveling across state lines to meet an adult and not a
minor—to argue that there was insufficient evidence to
establish his criminal intent in violation of 18 U.S.C. §
2423(b). Section 2423(b) criminalizes “travel[] in interstate
commerce . . . with a motivating purpose of engaging in any
illicit sexual conduct with another person.” The government
introduced evidence that Davis traveled from New York to
Pennsylvania on the morning of his planned meeting with
Marisa. As discussed above, there was ample evidence from
15
This Court and other courts of appeals have upheld
convictions where the factfinders reject similar defenses
concerning knowledge of the would-be-victim’s age. See, e.g.,
Pawlowski, 682 F.3d at 211; United States v. Berk, 652 F.3d
132, 140 n.8 (1st Cir. 2011) (on plain error review).
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which the jury could conclude that Davis believed he was
meeting a minor and that the meeting would culminate in sex.
C. Prosecutor’s Statements
Next, Davis claims that he was prejudiced by the
prosecutor’s alleged misstatement of law during closing
arguments. The prosecutor told the jury that the substantial
step element of Davis’s § 2422(b) charge was satisfied by his
travel to meet Marisa and by his possession of condoms. Davis
objected, contending that a substantial step towards violating §
2422(b) must occur through the communications themselves.
Consistent with his theory at trial, Davis argues on appeal that,
“as a matter of law and logic,” post-enticement acts like travel
and the possession of condoms can never be a substantial step
for enticement of a minor. We review questions of law de
novo,16 and prejudicial statements made by a prosecutor at
closing for harmless error.17
First, Davis contends that, as a matter of law, a
substantial step must be necessary to the consummation of the
crime, citing United States v. Bailey.18 Because travel and
possession of condoms are not necessary to violate § 2422(b),
he asserts that neither of these acts can constitute a substantial
step towards that offense. Second, Davis argues that, as a
matter of logic, post-enticement acts cannot constitute a
substantial step because they occur after the alleged
enticement. To support this argument, Davis relies on United
16
United States v. Mitchell, 690 F.3d 137, 148 (3d Cir. 2012).
United States v. Gambone, 314 F.3d 163, 177 (3d Cir. 2003).
18
228 F.3d 637, 640 (6th Cir. 2000).
17
11
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States v. Nitschke,19 a district court opinion from the District of
Columbia Circuit that supports his contention that postenticement acts can never serve as a substantial step.
We do not agree with his interpretation of the law of
attempt. Davis misapprehends the relationship of a substantial
step to a criminal offense. The central purpose of the
substantial step inquiry is to corroborate criminal intent20 and
to establish that a defendant went beyond mere planning.21 The
substantial step does not need to be the exact conduct that the
statute criminalizes. It would be absurd to require the
substantial step, a single element of attempt, to be identical to
the consummated crime but for the fictitious minor.22
However, “important to a substantial-step assessment is an
understanding of the underlying conduct proscribed by the
19
843 F.Supp. 2d 4, 16 (D.D.C. 2011)
Cruz-Jiminez, 977 F.2d at 102; Martinez v. Att’y Gen., 906
F.3d 281, 284 (3d Cir. 2018); MPC 5.01(2); cf. United States
v. Howard, 766 F.3d 414, 419-20 (5th Cir. 2014) (“This
requirement ‘prevents the conviction of persons engaged in
innocent acts on the basis of a mens rea proved through
speculative inferences, unreliable forms of testimony, and past
criminal conduct.’”) (quoting United States v. Oviedo, 525
F.2d 881, 884-85 (5th Cir. 1976)).
21
Martinez, 906 F.3d at 285; United States v. Hayward, 359
F.3d 631, 644 (3d Cir. 2004) (Fuentes, J., dissenting in part)
(“A ‘substantial step’ has been defined as something more than
mere preparation and less than the last act necessary before
commission.”).
22
Cf. Cruz-Jiminez, 977 F.2d at 102 n.11 (distinguishing the
element of intent from the substantial step inquiry).
20
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crime being attempted.”23 The substantial step must, in some
way, relate to the conduct criminalized by the statute.24 Here,
that conduct requires the use of interstate facilities to entice a
minor to engage in sexual conduct.25
A post-enticement act like travel can constitute a
substantial step in violating § 2422(b). To do so, however, the
travel must relate to the defendant’s enticing
communications.26 This reasoning is implicit in most decisions
involving travel because, generally speaking, the travel relates
23
United States v. Farhane, 634 F.3d 127, 148 (2d Cir. 2011).
See United States v. Dworken, 855 F.2d 12, 19-20 (1st Cir.
1988) (“[I]n order to constitute a substantial step leading to
attempt liability, an actor’s behavior must be of such a nature
that a reasonable observer, viewing it in context could
conclude beyond a reasonable doubt that it was undertaken in
accordance with a design to violate the statute.”) (emphasis
added) (internal quotation marks omitted).
25
18 U.S.C. § 2422(b).
26
We in no way mean to suggest that post-enticement acts are
the only way of proving a substantial step.
Davis’s
communications could be reasonably interpreted as a
substantial step to entice a minor, see United States v. Nestor,
574 F.3d 159, 161 (3d Cir. 2009), specifically his offer of gifts
to Marisa.
24
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to a plan established by the interstate communication.27 In
these circumstances, traveling to an agreed upon location may
demonstrate that a defendant’s communications were not
innocent but harbored criminal intent and that the defendant
was willing to go beyond mere planning. In other words,
traveling demonstrates that the communications were not “all
hot air.”28
Every other court of appeals that has addressed this
issue has held that travel can constitute a substantial step.29
This determination is consistent with our decision in
27
See, e.g., United States v. Young, 613 F.3d 735, 743 (8th Cir.
2010) (finding defendant’s attempt to reserve motel room and
his travel to the motel and a park, all in accordance to plans
made over communications with minor, each constituted
substantial steps); United States v. Brand, 467 F.3d 179, 204
(2d Cir. 2006) (“Brand took a ‘substantial step’ . . . because
Brand actually went to . . . the meeting place that he had
established with [the minor].”).
28
See United States v. Gladish, 536 F.3d 646, 650 (7th Cir.
2008).
29
Brand, 467 F.3d at 204; Howard, 766 F.3d at 420-21;
United States v. Vinton, 946 F.3d 847, 852 (6th Cir. 2020);
Gladish, 536 F.3d at 648-49; Young, 613 F.3d at 743; United
States v. Goetzke, 494 F.3d 1231, 1236 (9th Cir. 2007);
United States v. Faust, 795 F.3d 1243, 1250 (10th Cir. 2015);
United States v. Gillis, 938 F.3d 1181, 1190 (11th Cir. 2019);
cf. Berk, 652 F.3d at 140-41 (proposing rendezvous is a
substantial step); United States v. Engle, 676 F.3d 405, 423
(4th Cir. 2012) (same); United States v. Clarke, 842 F.3d 288,
298 (4th Cir. 2016) (bringing candy to meetup location is
substantial step).
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Tykarsky.30 Although in that case we identified the defendant’s
instant messages as a substantial step, we also indicated that
his travel to “the Holiday Inn according to the plan established
over the instant messages provide[d] the requisite ‘measure of
objective evidence’ corroborating his intent.”31 That is the
precise purpose of the substantial step inquiry.32
Requiring the substantial step to relate to the enticing
communications prevents criminalizing otherwise lawful
behavior and permitting improper inferences against a criminal
defendant. In United States v. Roman, the Sixth Circuit Court
of Appeals held that a substantial step was taken by the
defendant when he brought a flower and a candy bar to a
meetup location after the defendant was told to bring those
items to “break the ice” with the child.33 The court there
tethered its substantial step inquiry to the criminalized conduct.
Here, Davis’s travel to the McDonald’s parking lot
constitutes a substantial step. He and Marisa made plans over
text message to meet that day and have sex. His travel relates
directly to their conversation, corroborates his criminal intent,
and establishes that his communications were not merely hot
air.
30
446 F.3d at 469.
Id. at 469 (quoting United States v. Everett, 700 F.2d 900,
908 (3d Cir. 1983)).
32
See id.; see also Goetzke, 494 F.3d at 1237 (interpreting
Tykarsky to have concluded “that instant messages arranging a
meeting and appearing at the prearranged meeting place each
provided sufficient evidence of a substantial step”).
33
795 F.3d 511, 514, 518 (6th Cir. 2015).
31
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Davis’s possession of condoms also constitutes a
substantial step. The government often uses a defendant’s
possession of condoms to establish a substantial step in §
2422(b) prosecutions.34 However, juries must not be invited to
infer criminal intent by the mere possession of a widely
available prophylactic. Only when it relates to the offending
communications can the possession of condoms be said to
corroborate a defendant’s criminal intent to violate § 2422(b).
To find otherwise would divorce the substantial step inquiry
from the offensive conduct and sanction the potential for
improper inferences against a defendant. We have no such
concerns about the prosecutor’s theory of culpability here.
Davis assured Marisa over text message that she would not get
pregnant because he would bring protection. His possession of
condoms at the meetup location was consistent with their plan
and corroborates his criminal intent.
It was entirely
appropriate for the prosecutor to argue that his travel and
possession of condoms were substantial steps in violation of §
2422(b).
D. Entrapment
Davis asserts that he was entrapped as a matter of law
into violating § 2422(b). He relies on his lack of a criminal
34
Compare Brand, 467 F.3d at 204 (condoms discussed over
communications); Faust, 795 F.3d at 1250 (same), with United
States v. Gagliardi, 506 F.3d 140, 144, 150-51 (2d Cir. 2007)
(condoms not tied to communications); United States v.
Strubberg, 929 F.3d 969, 975 (8th Cir. 2019) (same); United
States v. Myers, 575 F.3d 801, 809 (8th Cir. 2009) (same);
United States v. Murrell, 368 F.3d 1283, 1288 (9th Cir. 2004)
(same).
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history, his attempts to avoid explicit sexual conversation with
Marisa, and Officer Block’s tenacity in the sting operation.
The District Court determined that there was sufficient
evidence to submit the entrapment defense to the jury. When
a jury has rejected an entrapment defense, as it did here, we
“must view the evidence in the light most favorable to the
prosecution, and resolve all reasonable inferences therefrom in
its favor . . . [and] must uphold the jury’s verdict unless no
reasonable jury could conclude beyond a reasonable doubt that
the defendant was predisposed to commit the offense for which
he was convicted.”35
“Entrapment occurs when a defendant who was not
predisposed to commit the crime does so as a result of the
government’s inducement.”36 We have loosely defined
predisposition “as the defendant’s inclination to engage in the
crime for which he was charged, measured before his initial
exposure to government agents.”37 The affirmative defense of
entrapment has two elements: (1) government inducement of
the crime, and (2) lack of predisposition on the part of the
defendant to engage in the criminal conduct. 38 If a defendant
makes a prima facie showing of both elements, the burden
shifts to the government to disprove the entire defense by
disproving one of the elements of the defense beyond a
35
United States v. Lakhani, 480 F.3d 171, 179 (3d Cir. 2007)
(quoting United States v. Jannotti, 673 F.2d 578, 598 (3d Cir.
1982)).
36
Jannotti, 673 F.2d at 597.
37
United States v. Fedroff, 874 F.2d 178, 182 (3d Cir. 1989)
(internal citation and footnote omitted).
38
United States v. Dennis, 826 F.3d 683, 690 (3d Cir. 2016).
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reasonable doubt.39 The government may prove predisposition
by showing “(1) an existing course of criminal conduct similar
to the crime for which the defendant is charged, (2) an already
formed design on the part of the accused to commit the crime
for which he is charged, or (3) a willingness to commit the
crime for which he is charged as evidenced by the accused’s
ready response to the inducement.”40
The government’s evidence best fits into the third
method of showing Davis’s predisposition, a willingness to
commit the crime. Davis’s post-arrest statements regarding his
attraction to young girls is evidence that he was willing to
entice a minor. When Davis discovered he was corresponding
with a fourteen-year-old who posted a personals ad for sex, his
“ready response” acknowledged her age and asked if she
wanted to meet that day. Based on this evidence, a reasonable
jury could conclude beyond a reasonable doubt that Davis was
predisposed to entice a minor.
Davis’s reluctance to engage in sexually explicit
conversation is not necessarily evidence of his nonpredisposition to violate § 2422(b). Rather, it may be evidence
of a misguided attempt to avoid incriminating himself. Section
2422(b)
does
not
criminalize
sexually
explicit
39
United States v. El-Gawli, 837 F.2d 142, 145, 147 (3d Cir.
1988). It is not clear from the record how Davis satisfied his
burden of production to show government inducement.
However, the government did not object to the instruction at
the time and does not challenge Davis’s prima facie defense
now.
40
Lakhani, 480 F.3d at 179 (quoting United States v. Gambino,
788 F.2d 938, 945 (3d Cir. 1986)).
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communications.41 It criminalizes communications designed
to “persuade[], induce[], entice[], or coerce[]” a minor “to
engage in . . . sexual activity.”42 In other words, it
“criminalizes an intentional attempt to achieve a mental state—
a minor’s assent” to engage in sexual conduct.43 Davis’s text
messages are replete with attempts to entice Marisa to meet
him. Although he claims that his plan to meet her was
innocent, his argument is refuted by the evidence. He
confessed that he used Craigslist to have sex. He expressed
fear of getting caught by law enforcement. He groomed Marisa
by showering her with compliments, promising her gifts, and
bringing up sexual topics like her virginity, all while
insinuating that his ultimate goal was to engage in sexual
activity with her. Accordingly, we hold that he was not
entrapped as a matter of law.
E. Sentencing Enhancement
Davis argues that the District Court erred by applying a
sentencing enhancement for (1) misrepresenting his age and
(2) misrepresenting his sexual orientation, in an effort to
influence a minor to engage in sexual conduct. Because Davis
made no objection to his sentencing enhancement, we review
his sentence for plain error.44 “To demonstrate ‘plain error’ an
appellant bears the burden of proving that (1) the court erred
(2) the error was ‘plain’ at the time of appellate consideration
and (3) the error affected substantial rights, usually meaning
41
Tykarsky, 446 F.3d at 482.
18 U.S.C. § 2422(b).
43
United States v. Dwinells, 508 F.3d 63, 71 (1st Cir. 2007)
(emphasis omitted).
44
See United States v. Glass, 904 F.3d 319, 321 (3d Cir. 2018).
42
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Date Filed: 01/12/2021
that the error ‘must have affected the outcome of the district
court proceedings.’”45 An error is “plain” if it is clear or
obvious.46 A person’s substantial rights are affected if there is
a reasonable probability that the District Court would have
imposed a lower sentence absent the error.47 We hold that the
District Court did not plainly err by applying the enhancement.
U.S.S.G. § 2G1.3(b)(2) provides for a two-level
sentencing enhancement “[i]f (A) the offense involved the
knowing misrepresentation of a participant’s identity to
persuade, induce, entice, coerce, or facilitate the travel of, a
minor to engage in prohibited sexual conduct; or (B) a
participant otherwise unduly influenced a minor to engage in
prohibited sexual conduct.” Davis’s misrepresentations of his
age and sexual orientation best fit under § 2G1.3(b)(2)(A),
which prohibits “misrepresentation of a participant’s identity,”
including a defendant’s “name, age, occupation, gender, or
status.”48
First, Davis argues that the Guidelines do not permit an
enhancement for convictions involving sting operations.
However, he cites a Guideline Application Note that precludes
enhancements for convictions arising from sting operations
45
Id. (quoting United States v. Rosa, 399 F.3d 283, 293 (3d
Cir. 2005)).
46
United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006).
47
See Molina-Martinez v. United States, 136 S. Ct. 1338,
1347-48 (2016).
48
U.S.S.G. § 2G1.3, App. Note 3(A); cf. Young, 613 F.3d at
748-49 (misrepresenting identity for, inter alia, lying about
marriage and having children).
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under § 2G1.3(b)(2)(B).49
The relevant provision, §
2G1.3(b)(2)(A), does not prohibit applying the enhancement to
convictions arising from sting operations.
Next, Davis argues that the enhancement should not
apply because he corrected the misrepresentation of his age
before his conversation with Marisa turned sexual. However,
Davis’s conversation was steeped in sexual innuendo from the
start. Davis’s later revelation of his real age does not undo his
initial misrepresentation, which can be reasonably understood
as an effort to make Marisa feel more comfortable as their
correspondence began and ultimately entice her to have sex.
Last, Davis contends that he did not misrepresent his
sexual orientation to entice Marisa and instead was attempting
to end communications with her. The government contends he
did this to assure Marisa he was not a sexual threat in his
continued effort to meet her. Because the government’s theory
is reasonable, any error was not plain. Even if the court did
err, it did not affect Davis’s substantial rights because the twopoint enhancement would still apply as a result of his
misrepresentation about his age.
III. Conclusion
For the foregoing reasons, we will affirm Davis’s
judgments of conviction and sentence.
49
U.S.S.G. § 2G1.3, App. Note 3(B) (“[S]ubsection (b)(2)(B)
does not apply in a case in which the only ‘minor’ . . . is an
undercover law enforcement officer.”).
21
APPENDIX C
Case: 19-1696
Document: 91
Page: 1
Date Filed: 05/12/2021
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 19-1696
UNITED STATES OF AMERICA
v.
ALEXANDER DAVIS,
Appellant
(D.C. No. 5-18-cr-00105-001)
SUR PETITION FOR REHEARING
Present: SMITH, Chief Judge, MCKEE, AMBRO, CHAGARES, JORDAN,
HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO,
BIBAS, PORTER, MATEY, PHIPPS and *ROTH, Circuit Judges
The petition for rehearing filed by Appellant in the above-entitled case
having been submitted to the judges who participated in the decision of this Court and to
all the other available circuit judges of the circuit in regular active service, and no judge
who concurred in the decision having asked for rehearing, and a majority of the judges of
the circuit in regular service not having voted for rehearing, the petition for rehearing by
the panel and the Court en banc, is DENIED.
________________
* The Vote of Senior Circuit Judge Roth is limited to Panel Rehearing Only.
Case: 19-1696
Document: 91
Page: 2
Date Filed: 05/12/2021
BY THE COURT,
s/ JANE R. ROTH
Circuit Judge
Dated: May 12, 2021
CJG/cc:
Lisa A. Mathewson, Esq.
Carolyn H. Kendall, Esq.
Robert Epstein, Esq.
Emily McKillip, Esq.
Josh A. Davison, Esq.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.