                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1404
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Joshua James Baeten

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                           Submitted: February 6, 2017
                              Filed: June 22, 2017
                                 [Unpublished]
                                ____________

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
                          ____________

PER CURIAM.

        Joshua Baeten engaged in online correspondence with someone he believed to
be an 11-year-old girl. During their conversations, Baeten told her he liked young
girls, sent her pornographic images, and asked her “how much sexual experience” she
had. Ultimately, Baeten mailed the girl a webcam with the expectation that he could
watch as she and her 13-year-old sister “messed around.” As it turned out, there was
no 11-year-old girl. Baeten had been communicating with an undercover agent
posing as a minor. After Baeten mailed the webcam, it was seized by law
enforcement, who then executed a search warrant at Baeten’s home. There, officers
found over 600 images of child pornography on various electronic devices. Baeten
pleaded guilty, pursuant to an Information, to one count of coercion and enticement
of a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b)
(“Whoever, using the mail or any facility or means of interstate or foreign commerce
. . . knowingly persuades, induces, entices, or coerces any 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, shall be . . .
imprisoned not less than 10 years or for life.”).

       At sentencing, the district court1 imposed a below-guidelines sentence of 200
months’ imprisonment, and a term of life on supervised release. Baeten appeals,
arguing the district court erred in considering an irrelevant or improper factor in
violation of 18 U.S.C. § 3553(a). There has been some confusion in this circuit
regarding the proper standard of review to apply in cases where, as here, the
defendant failed to contemporaneously object to the court’s consideration of a
purportedly improper or irrelevant factor. See United States v. Kouangvan, 844 F.3d
996, 999 (8th Cir. 2017). Compare United States v. O’Connor, 567 F.3d 395, 397
(8th Cir. 2009) (reviewing for substantive reasonableness under plain-error standard)
and United States v. Burnette, 518 F.3d 942, 949 (8th Cir. 2008) (reviewing for
procedural error under plain-error standard), with United States v. Mees, 640 F.3d
849, 856 (8th Cir. 2011) (reviewing for substantive reasonableness under abuse-of-
discretion standard). But “[w]e need not resolve the apparent conflict . . . because
[Baeten] is not entitled to relief even if we leave the heightened plain-error standard
aside and simply review for abuse of discretion.” Kouangvan, 844 F.3d at 999.


      1
       The Honorable Joan N. Ericksen, United States District Court Judge for the
District of Minnesota.

                                          -2-
       In support of his appeal, Baeten focuses on one statement the district court
made at sentencing, which he considers improper: “I’m reluctant to vary very much
downward because the crime that you committed would have, as the government said,
caused incalculable damage [had the undercover agent been a real child].” According
to Baeten, he “should have been sentenced for what he did, and not based upon what
would have been the damage to a real child victim.” As an initial matter, we note
there need not be an actual minor victim involved to support a conviction for attempt
under § 2422(b). United States v. Helder, 452 F.3d 751, 756 (8th Cir. 2006) (“[A]n
actual minor victim is not required for an attempt conviction under § 2422(b).”).
Because the attempt portion of the statute does not distinguish between actual minor
victims and undercover agents posing as minors, Baeten was in fact sentenced for
what he did— knowingly attempting to entice or coerce a minor into engaging in
sexual activity. See id. at 755 (“The mens rea requirement of knowledge refers to the
defendant’s subjective intent—it is what is in the mind of the defendant. . . . That he
was mistaken in his knowledge is irrelevant.” (quotations and citation omitted)).

       The district court noted that Baeten had previously been on the sex offender
registry for ten years, but he had “learned the wrong things, not the right things,”
made evident by his recent conduct. In this context, the district court’s comment is
legitimately directed to permissible statutory sentencing factors, including Baeten’s
history of communicating with minor girls about sexual activity, the need for the
sentence to reflect the serious potential danger associated with this type of conduct,
and the need to protect the public from someone the court considered “a danger to the
community.” See 18 U.S.C. § 3553(a). The district court did not abuse its discretion
in considering the potential harm that could have resulted had Baeten’s offense been
carried out with an actual minor victim when imposing a below-guidelines sentence.

      The judgment of the district court is affirmed.
                     ______________________________

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