977 F.3d 381
5th Cir.2020Background
- Peterson responded to a Craigslist ad and exchanged sexually explicit messages with an undercover law-enforcement agent posing as a female who ultimately identified herself as 13 years old and sent an age-regressed photo.
- Peterson continued explicit texting, proposed meeting, offered to buy the minor a phone for sexually explicit material, and agreed to a park meetup.
- At the arranged meeting Peterson arrived with an empty condom box, erectile dysfunction medication, two small-size pajama sets (receipt included), and was arrested.
- A jury convicted Peterson of attempted enticement of a minor under 18 U.S.C. § 2422(b); the district court imposed a 240-month prison term and life supervised release.
- On appeal Peterson raised: (1) sufficiency of evidence as to the enticement element, (2) denial of a requested jury instruction defining “enticement,” and (3) procedural sentencing errors—failure to consider a § 4A1.3 departure before an upward variance and reliance on allegedly erroneous PSR allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of enticement under § 2422(b) | Gov.: Evidence (texts, age disclosure, age-regressed photo, offer to buy phone, meeting, condoms/props) supports attempt to induce. | Peterson: Enticement requires proof he altered or affected the minor’s mental state, not mere arrangement or making sex more appealing. | Affirmed — a reasonable jury could find Peterson knowingly attempted to induce/entice the minor. |
| Jury instruction on “enticement” | Gov.: Pattern instruction adequate; focus is on defendant’s intent. | Peterson: Requested instruction defining "persuade/induce/entice" in ordinary terms (one person leading another) to emphasize victim’s state of mind. | Affirmed — trial court did not abuse discretion; requested instruction was not a correct statement of Fifth Circuit law because law focuses on defendant’s intent, not victim’s mental state. |
| Sentencing: failure to consider § 4A1.3 departure before upward variance | Peterson: Court should have formally calculated and explained a § 4A1.3 departure before imposing a non-Guidelines upward variance. | Gov.: No procedural error; court followed § 1B1.1 three-step approach and is not required to compute § 4A1.3 before imposing a non-Guidelines sentence. | Affirmed — defendant preserved claim; but Fifth Circuit precedent permits a non-Guidelines variance without a formal § 4A1.3 calculation. |
| Sentencing: reliance on PSR allegations of uncharged "predatory" acts | Peterson: Court relied on materially false/uncharged allegations in PSR (incidents with a 16-year-old and a 32-year-old). | Gov.: PSR entries bore indicia of reliability; Peterson failed to rebut; district court may consider reliable PSR information. | Affirmed — 16-year-old incident preserved and not clearly erroneous; 32-year-old incident reviewed for plain error and not reversible. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for sufficiency review)
- United States v. Rounds, 749 F.3d 326 (5th Cir. 2014) (elements of § 2422(b) and focus on defendant’s intent)
- United States v. Lundy, 676 F.3d 444 (5th Cir. 2012) (enticement may be found from sexually explicit communications and agreement to meet)
- United States v. Howard, 766 F.3d 414 (5th Cir. 2014) (sexually explicit messages probative of intent to induce)
- United States v. Broussard, 669 F.3d 537 (5th Cir. 2012) (attempt requires culpability for underlying offense and a substantial step)
- United States v. Gutierrez, 635 F.3d 148 (5th Cir. 2011) (district court not required to use § 4A1.3 methodology before imposing a non-Guidelines sentence)
- United States v. Nguyen, 854 F.3d 276 (5th Cir. 2017) (standards of review for procedural reasonableness and Guidelines application)
- United States v. Harris, 702 F.3d 226 (5th Cir. 2012) (PSR generally bears indicia of reliability; defendant must rebut to exclude PSR facts)
- United States v. Rodriguez, 602 F.3d 346 (5th Cir. 2010) (preservation rules and scope of appellate review for sentencing objections)
- United States v. Smith, 440 F.3d 704 (5th Cir. 2006) (precedent regarding § 1B1.1 and the district court’s obligations when imposing non-Guidelines sentences)