United States v. Saldana-Rivera, 914 F.3d 721

In Feb 2016 Saldaña (online alias “Irresistible”) communicated with an undercover DHS agent posing as an 11-year-old girl via a chatroom and Kik; he sent photos, asked sexual questions, and agreed to meet for sex.
When Saldaña arrived at the meeting he was arrested by law enforcement; he admitted he believed he had been communicating with an eleven‑year‑old and intended to have sex.
Saldaña was indicted and tried for attempted coercion and enticement of a minor under 18 U.S.C. § 2422(b); he withdrew a prior guilty plea and proceeded to trial to preserve appellate issues.
The jury convicted Saldaña; the district court sentenced him to 120 months’ imprisonment and 15 years’ supervised release.
On appeal Saldaña argued (1) factual impossibility: because the counterpart was an adult agent he could not have been charged under Puerto Rico law (Article 130), and (2) the jury instructions misstated the government’s burden.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 2422(b) requires that the defendant could have been charged under the applicable state statute given the actual facts (i.e., factual impossibility defense)	Saldaña: Because he communicated with an adult agent, he could not have been charged under Puerto Rico law, so § 2422(b) cannot apply.	Government: § 2422(b) asks whether the sexual activity attempted is one for which any person could be charged under state law; factual impossibility is not a defense to attempt.	Court: Affirmed conviction; adopt subjective perspective—defendant’s intent to engage in sex with a minor suffices; factual impossibility is not a defense under § 2422(b).
Proper framing of the “for which any person can be charged” element in jury instructions	Saldaña: Jury should have been instructed that an actual minor was required or that the activity must be criminal, not merely chargeable.	Government: The instruction tracked the statute; context showed intent to criminalize sex with a minor.	Court: No reversible error; although a clearer instruction would be preferable, any error was not plain and did not affect substantial rights given overwhelming evidence.

United States v. Dwinells, 508 F.3d 63 (1st Cir.) (upholding use of state law to define chargeable sexual activity under § 2422(b))
United States v. Berk, 652 F.3d 132 (1st Cir.) (focus on defendant’s intent in attempt crimes)
United States v. Dixon, 449 F.3d 194 (1st Cir.) (factual impossibility not a defense to attempt crimes)
United States v. Mehanna, 735 F.3d 32 (1st Cir.) (factual impossibility rejected in attempt context)
United States v. Tykarsky, 446 F.3d 458 (3d Cir.) (adopting subjective-intent approach; factual impossibility not a bar under § 2422(b))
United States v. Mannava, 565 F.3d 412 (7th Cir.) (refusing literal reading that would make probable cause sufficient)
United States v. Gagliardi, 506 F.3d 140 (2d Cir.) (upholding § 2422(b) conviction in sting/decoy contexts)