United States v. Peterson

• Decision Date: 06 October 2020
• Docket Number: No. 19-11143,19-11143
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Gary Glenn PETERSON, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

977 F.3d 381

UNITED STATES of America, Plaintiff—Appellee,

v.Gary Glenn PETERSON, Defendant—Appellant.

No. 19-11143

United States Court of Appeals, Fifth Circuit.

FILED October 6, 2020

Amanda R. Burch, Assistant U.S. Attorney, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office Northern District of Texas, for Plaintiff - Appellee.

Edwin Gerald Morris, Law Office of E. G. Morris, Austin, TX, Defendant - Appellant.

Before Higginbotham, Jones, and Higginson, Circuit Judges.^*

Stephen A. Higginson, Circuit Judge:

Gary Glenn Peterson was convicted by a jury of attempted enticement of a minor to engage in illegal sexual activity under 18 U.S.C. § 2422(b) and sentenced to 240 months’ incarceration. Peterson appeals his conviction and sentence on three grounds. First, he argues there was insufficient evidence to prove the enticement element of § 2422(b). Second, Peterson argues that the district court erred when it declined to give his requested jury instruction on the definition of enticement. Finally, Peterson challenges the procedural reasonableness of his sentence on two grounds: he argues that the district court erred when it failed to adequately consider a departure under U.S.S.G. § 4A1.3 prior to imposing an upward variance based on criminal history, and that it also erred by considering clearly erroneous facts at sentencing. We AFFIRM.

I.

On March 5, 2015, Peterson responded to an online advertisement in the personals section of Craigslist posted by Investigator John Graham of the Taylor County, Texas, Sheriff's Office, who was posing as a 19-year-old woman named "Nikki."

Over the course of the next five days, "Nikki" and Peterson's conversation proceeded from e-mails to text messages. Peterson sent "Nikki" photographs of himself, and Investigator Graham as "Nikki" sent Peterson two images: a darkened picture of the body of a 25-year-old woman and a picture of a woman that had been age-regressed to look like a 13-year-old girl. During their text conversations, "Nikki" implied several times that she was not 18 years old, and she ultimately told Peterson that she was 13 years old. Despite learning that "Nikki" was 13 years old, Peterson continued the text conversation. They discussed her sexual experiences, potential meetings, and prospective sexual encounters. At one point, Peterson suggested he would purchase "Nikki" a cell phone if she met with him in person so she could send him sexual videos and photos.

On March 18, 2015, "Nikki" told Peterson to meet her at a local park. Peterson arrived at the meet-up location with an empty condom box, erectile dysfunction medication, and a Victoria's Secret bag containing two pink pajama sets in size Petite Small and a receipt showing he had purchased the items that morning at the local mall. Peterson was arrested upon his arrival.

In February 2019, Peterson was indicted on a single count of attempted enticement of a child in violation of 18 U.S.C. § 2422(b) and, after trial, a jury convicted him. The district court sentenced Peterson to 240 months’ incarceration followed by a life term of supervised release. Peterson timely appealed.

II.

Peterson's first argument on appeal is that the evidence at trial was insufficient to support his conviction of attempted enticement of a minor under 18 U.S.C. § 2422(b).

To support a conviction under 18 U.S.C. § 2422(b), the Government must prove that Peterson (1) "used a facility of interstate commerce to commit the offense," (2) "was aware that [the victim] was younger than eighteen," (3) "could have been charged with a criminal offense" by "engaging in sexual activity with [the victim]," and (4) "knowingly persuaded, induced, enticed, or coerced [the victim] to engage in criminal sexual activity." United States v. Rounds , 749 F.3d 326, 333 (5th Cir. 2014). To prove attempted coercion or enticement of a minor, "the Government must establish beyond a reasonable doubt that the defendant (1) acted with the culpability required to commit the underlying substantive offense, and (2) took a substantial step toward its commission." United States v. Broussard , 669 F.3d 537, 547 (5th Cir. 2012) (quoting United States v. Barlow , 568 F.3d 215, 219 (5th Cir. 2009) ).

Peterson preserved the sufficiency issue when he moved for judgment of acquittal under Federal Rule of Criminal Procedure 29 at the close of the Government's case, which was also the close of all evidence. United States v. Jaras , 86 F.3d 383, 388 n.5 (5th Cir. 1996). We therefore review de novo whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Romans , 823 F.3d 299, 311 (5th Cir. 2016) (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). We review the evidence, both direct and circumstantial, as well as any reasonable inferences drawn from the evidence, in "a light most favorable to the verdict." United States v. Rose , 587 F.3d 695, 702 (5th Cir. 2009) (per curiam) (quoting United States v. Harris , 420 F.3d 467, 470 (5th Cir. 2005) ).

Peterson challenges the sufficiency of the evidence only as to the fourth element of § 2422(b). Citing case law from other circuits, Peterson argues that the element of persuasion, inducement, or enticement requires a showing that he made an effort to "alter" or "affect" the minor's mental state, and that it is insufficient to show that he simply arranged, asked for, or made sexual activity "more appealing."

"Whether there was inducement, persuasion, or enticement is a question of fact for the jury to decide. All this court must decide is whether or not enough evidence was presented for a reasonable jury to come to the conclusion that there was some form of inducement." United States v. Lundy , 676 F.3d 444, 450 (5th Cir. 2012). Sending sexually explicit messages is probative evidence of intent to induce, persuade, entice, or coerce a minor to engage in illegal sex. United States v. Howard , 766 F.3d 414, 425 (5th Cir. 2014) ; Rounds , 749 F.3d at 333.

This court has also rejected arguments similar to Peterson's argument that the Government must show that the minor was unwilling until the defendant's actions persuaded the minor to engage in sexual activity. For example, in United States v. Lundy , the defendant argued that the Government had failed to prove persuasion because the minor was "willing." Lundy , 676 F.3d at 449. This court rejected the defendant's argument in light of the evidence that he had "made contact with and engaged in a string of sexually laced text message and phone conversations with a girl he thought to be 15 year[s] old" and, after conversations over the course of a week, "agreed to meet" at a restaurant and "then travel to her house to have sex." Id . at 447, 450.

Similarly, in United States v. White ,¹ the defendant also argued that the Government had failed to prove inducement. 636 F. App'x 890, 892 (5th Cir. 2016) (unpublished opinion). This court again rejected the defendant's argument in light of the evidence that he had "responded to a Craigslist advertisement posted by law enforcement agents," "communicated with agents posing as a 13-year-old girl," "suggested sex more than once during [a] text conversation" even "[a]fter learning [the victim's] age and viewing an age regressed photograph of an undercover officer," "suggested meeting," and "appeared at the arranged location and brought condoms with him." Id . at 893.

Peterson engaged in conduct similar to the defendants’ conduct in Lundy and White . He responded to a Craigslist advertisement posted by a law enforcement agent, exchanged sexually explicit text messages for two weeks with the law enforcement agent posing as a minor female named "Nikki," continued these explicit text conversations even after "Nikki" told Peterson she was a 13-year-old girl and sent him a photo of a woman that had been age-regressed to look like a 13-year-old girl, suggested he would purchase "Nikki" a cell phone if she met with him in person so she could send him sexual videos and photos, agreed to meet "Nikki" at a public park to have sex, and arrived at the meet-up location with an empty condom box, erectile dysfunction medication, and a Victoria's Secret bag containing two pink pajama sets in size Petite Small and a receipt showing he had purchased the items that morning at a local mall. Given this evidence, we conclude that a rational trier of fact could have found that Peterson knowingly attempted to induce or entice a minor to engage in sexual activity.

III.

Peterson's second argument on appeal is that the district court erred when it rejected his proposed jury instruction clarifying the definition of "enticement."

We review a district court's refusal to give a requested jury instruction for abuse of discretion. United States v. Bennett , 874 F.3d 236, 242 (5th Cir. 2017). A district court errs in rejecting a requested jury instruction if the instruction "(1) is substantively correct;² (2) is not substantially covered in the charge given to the jury; and (3) concerns an important point in the trial so that the failure to give it seriously impairs the defendant's ability to present effectively a particular defense." Id . at 243 (quoting United States v. Sheridan , 838 F.3d 671, 673 (5th Cir. 2016) ).

Here, Peterson requested a jury instruction clarifying that the words "persuade," "induce," and "entice" should be given their ordinary meaning: "the idea conveyed is of one person leading or moving another by persuasion or influence, as to some action or state of mind." The district court denied Peterson's request, overruled his objection to that denial, and ultimately charged the jury with instructions that were consistent with this circuit's pattern jury instructions. FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS ( CRIMINAL CASES ) § 2.91 (2015).

The district court did not abuse its discretion in rejecting Peterson's requested jury instruction because it is not a ...