                                                               [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                  MAY 17, 2010
                                 No. 09-14259                      JOHN LEY
                             Non-Argument Calendar                   CLERK
                           ________________________

                      D. C. Docket No. 09-00038-CR-KD-B

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                       versus

CARLOS GORDON PETTIS,

                                                               Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Southern District of Alabama
                         _________________________

                                  (May 17, 2010)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

      Carlos Gordon Pettis appeals his conviction for using a facility of interstate

commerce to attempt to entice or persuade a minor to engage in a sexual activity as
defined by state law, in violation of 18 U.S.C. § 2422(b). Because we conclude

that the government proved the interstate nexus of the offense, we affirm.

       The evidence at trial established that social services notified the Mobile

Police Department that Pettis had approached a twelve-year-old girl identified as

“A.” Detective Shannon Payne interviewed A and her mother and decided to

record a call to Pettis in which Payne would pretend to be the minor. Because A

stated that she and Pettis communicated through written messages, Payne sent

Pettis a text message instead.1 Payne did this using her own cell phone because A

did not have a cell phone. Over the next few hours, Payne and Pettis exchanged

numerous text messages and ultimately made arrangements to meet for sex. At the

meeting place, Payne spotted Pettis, sent him a message, watched Pettis pick up his

cell phone, and arrested him. Pettis admitted that he knew A and had sent and

received the texts that day. Pettis’s cell phone was introduced at trial, and a

cellular forensic expert testified that the phone communications traveled between

New York, New Jersey, and Alabama. Pettis was convicted and ultimately

sentenced to 120 months’ imprisonment.

       Pettis now appeals, arguing that the government manufactured jurisdiction

by using Payne’s cell phone to send the texts to him, thus unilaterally supplying the


       1
        According to the record, Pettis would write a message on his phone and show it to A.
There was no evidence that Pettis previously sent any text messages to A.

                                             2
element of interstate commerce.

       Pettis did not raise the jurisdictional nexus argument before the district

court; therefore, we review the issue for plain error.2 United States v. Spoerke, 568

F.3d 1236, 1244-45 (11th Cir. 2009). Plain error occurs where: “(1) there is an

error; (2) that is plain or obvious; (3) affecting the defendant’s substantial rights in

that it was prejudicial and not harmless; and (4) that seriously affects the fairness,

integrity or public reputation of the judicial proceedings.” Id.

       Section 2422 provides,

       Whoever, using . . . any facility or means of interstate . . . commerce .
       . . knowingly persuades, induces, entices, or coerces any individual
       who has not attained the age of 18 years, to engage in . . . any sexual
       activity for which any person can be charged with a criminal offense,
       or attempts to do so, shall be fined under this title or imprisoned not
       less than 10 years or for life.

18 U.S.C. § 2422(b). Under the plain language of the statute, the government must

prove that the defendant used a facility of interstate commerce–here a cell phone–

to entice the minor to engage in unlawful sex. United States v. Murrell, 368 F.3d

1283, 1286 (11th Cir. 2004) (emphasis added).

       By focusing on Payne’s use of a cell phone, Pettis misunderstands the



       2
           The interstate nexus requirement in § 2422 is an element of the offense and is not
jurisdictional. See, e.g., United States v. Covington, 565 F.3d 1336, 1343-44 (11th Cir. 2009);
United States v. Drury, 396 F.3d 1303, 1313-14 (11th Cir. 2005). Because it is not jurisdictional,
Pettis’s failure to raise the issue before the district court makes plain error review appropriate.

                                                3
jurisdictional nexus. The relevant inquiry is whether Pettis used a cell phone to

commit the offense, and the fact that Payne posed as the victim and used her own

cell phone to communicate with Pettis was not improper. See, e.g. United States v.

Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) (“Congress may reach and

prohibit the use of a telephone or the internet to set up the sexual abuse of children

through intermediaries . . . . The communication does not have to be directly with

the victim.”); see also United States v. Faris, 583 F.3d 756, 759 (11th Cir. 2009)

(citing Hornaday).

       Additionally, a telephone is a facility of interstate commerce, and answering

the phone is “use” as that term is ordinarily defined. Covington, 565 F.3d at 1343.

Here, Pettis “used” his cell phone, as that term is ordinarily understood, when he

sent and received text messages arranging to meet A for sexual activity. Thus, we

conclude that there was no error and Pettis’s claim that the government

manufactured jurisdiction by using a detective’s cell phone to initiate the texts

fails. Pettis’s use of his own phone to send and receive the texts was sufficient to

establish the jurisdictional nexus.

       We further reject Pettis’s reliance on United States v. Archer, 486 F.2d 670

(2d Cir. 1973).3 Since Archer was decided, the courts have repeatedly limited its


       3
          Archer involved a sting designed to catch corrupt judges and prosecutors in which the
agents used informants to place interstate phone calls to the targets and give out-of-state numbers

                                                4
applicability and have indicated that manufacturing jurisdiction “is a dubious

concept.” United States v. Wallace, 85 F.3d 1063, 1065 (2d Cir. 1996). Only the

Fourth Circuit has followed Archer. United States v. Coates, 949 F.2d 104, 105

(4th Cir. 1991) (concluding that the government manufactured jurisdiction the

nexus was founded solely on one interstate phone call placed by a federal agent

and thus there was no affirmative link between the federal element and the

defendant’s actions.). In contrast, other circuits, including this one, have rejected

Archer. United States v. Petit, 841 F.2d 1546, 1553-4 (11th Cir. 1988). See also

United States v. Clark, 62 F.3d 110, 112 (5th Cir. 1995); United States v. Podolsky,

798 F.2d 177, 180-81 (7th Cir. 1986). Even if we were to consider the Archer

argument, jurisdiction in this case was not based on a single phone call initiated by

the police, cf. Coates, 949 F.2d at 105; rather, Pettis exchanged numerous text

messages over several hours with a person he thought was the victim.

       Because there was no error, plain or otherwise, Pettis’s conviction is

       AFFIRMED.




at which the informant could be reached. 486 F.2d at 672-74. The Second Circuit concluded that
these calls were insufficient to establish jurisdiction because the “federal officers themselves
supplied the interstate element.” Id. at 682.

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