                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________            FILED
                                                    U.S. COURT OF APPEALS
                                 No. 09-11312         ELEVENTH CIRCUIT
                                                         MARCH 3, 2010
                             Non-Argument Calendar
                                                           JOHN LEY
                           ________________________
                                                            CLERK

                     D. C. Docket No. 08-00133-CR-TWT-1

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

KENNETH CHASE,
a.k.a. Kenneth V. Chase,

                                                            Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________


                                 (March 3, 2010)


Before EDMONDSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
      Kenneth Chase appeals his conviction and 188-month sentence for using a

computer to attempt to entice a minor to engage in unlawful sexual activity, in

violation of 18 U.S.C. § 2422(b). Chase asserts three arguments on appeal, which

we address in turn. After review, we affirm Chase’s conviction and sentence.

                                          I.

      Chase first contends § 2422(b) does not permit conviction when a minor is

not present. Chase asserts he never spoke with anyone except for an undercover

law officer, and in the absence of an actual child victim, he cannot be convicted

under 18 U.S.C. § 2422(b) without reading words into the statute that are not

present. Chase concedes this Court has already held that, under circumstances

identical to his own, he may be convicted under § 2422(b). See United States v.

Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004) (holding a defendant may be

convicted under § 2422(b) for attempting to entice or induce a minor to engage in

unlawful sexual conduct where “a defendant believed he was communicating with

a minor, but was actually communicating with an undercover government agent”).

Under the prior panel precedent rule, “[w]e may disregard the holding of a prior

opinion only where that holding is overruled by the Court sitting en banc or by the

Supreme Court.” United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009)




                                          2
(quotations omitted). Chase’s contentions directly contradict our binding

precedent, and his argument is without merit.

                                          II.

      Chase next asserts the district court erroneously admitted prior act evidence

under Federal Rule of Evidence 404(b). We review evidentiary rulings, including

the admission of evidence under Rule 404(b), for abuse of discretion. United States

v. Gari, 572 F.3d 1352, 1361 (11th Cir. 2009). Evidence of a prior bad act may not

be admitted as proof of bad character. Fed. R. Evid. 404(b). However, it may be

admitted “as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” Id.

      Rule 404(b) evidence is subject to a three-part test for admissibility: (1) the

evidence must be relevant to an issue other than the defendant’s character; (2) there

must be sufficient proof that a jury could find by a preponderance of the evidence

the defendant committed the act; and (3) the probative value must not be

substantially outweighed by its undue prejudice, as per Federal Rule of Evidence

403. United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).

      “To establish relevance under the first prong where testimony is offered as

proof of intent, it must be determined that the extrinsic offense requires the same

intent as the charged offense.” United States v. Dickerson, 248 F.3d 1036, 1047



                                          3
(11th Cir. 2001) (quotations omitted). The “same intent” requirement will be

satisfied if the prior act and the charged crime “involve the same mental state.” Id.

However, evidence of a prior bad act involving the same subject matter will not

necessarily translate to same intent. See United States v. Marshall, 173 F.3d 1312,

1317 (11th Cir. 1999) (holding a prior arrest for being present in a house where

drug production took place, without any other evidence linking the defendants to

that drug production, was inadmissible to show intent to distribute in defendants’

pending possession and conspiracy charges). Additionally, even substantially

similar conduct may not necessarily be indicative of the same intent. See United

States v. Dothard, 666 F.2d 498, 503 (11th Cir. 1982) (holding because it was

unclear what defendant’s intent was at the time he made a prior misstatement while

procuring a driver’s license, the prior misstatement was insufficient to show the

defendant had an intent to deceive when making the misstatements for which he

was charged).

       Regarding the second prong, there must be sufficient evidence for a jury to

find the defendant committed the extrinsic act the Government alleges, but the act

itself need not be criminal. See United States v. Beechum, 582 F.2d 898, 903 n.1

(5th Cir. 1978)1 (“Our analysis applies whenever the extrinsic activity reflects


       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior

                                               4
adversely on the character of the defendant, regardless whether that activity might

give rise to criminal liability.”).

       With regard to the third prong, “whether the probative value of Rule 404(b)

evidence outweighs its prejudicial effect depends upon the circumstances of the

extrinsic offense.” Edouard, 485 F.3d at 1345 (quotations omitted). Similarity

between the prior bad act and the charged conduct will make the other offense

highly probative of the defendant’s intent in the charged offense. United States v.

Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005). Moreover, the risk of undue

prejudice can be reduced by an appropriate limiting instruction. Id.

       The Government introduced three pieces of evidence, all obtained from

Chase’s computer: (1) images depicting young girls in sexually provocative poses;

(2) titles of video files that suggested that they may contain child pornography; and

(3) a transcript of a chat in which Chase described his molestation of a child. The

evidence was admitted, in large part, as proof Chase possessed the requisite

specific intent to entice a minor into engaging in unlawful sexual acts.

       With regard to the images and the chat excerpt, both tend to show, as the

district court pointed out, “an interest in sex with young girls.” Chase’s reliance on

Marshall, 173 F.3d at 1317, and Dothard, 666 F.2d at 503, is misplaced because



to close of business on September 30, 1981.

                                              5
they both involve instances where the defendant’s intent while committing the

prior acts is unclear. By contrast, the intent to entice a young girl into performing

unlawful sexual acts necessarily involves a sexual interest in young girls, which is

the intent underlying Chase’s viewing sexually provocative images of young girls

and chatting online about molesting a young girl. Therefore, the images and the

chat excerpt both involve the same mental state as the charged offense, and they

satisfy the first prong of the Rule 404(b) admissibility test. Although neither the

chat transcript nor the images are necessarily indicative of criminal offenses, they

do not need to be. To the extent the Government introduced these as proof of

Chase’s intent to follow through with his enticement of a minor to commit

unlawful sexual acts, the presence of both the images and the chats on Chase’s

computer is sufficient for a jury to conclude, by a preponderance of the evidence,

the images and chats belonged to Chase. Finally, the evidence is probative,

particularly to rebut Chase’s denial that he intended to follow through with the acts

he talked about with “Sarah.” The Government established the images were

accessed during times corresponding with his communications with “Sarah.”

Moreover, the acts Chase described in the chat bore a direct parallel to his plans for

the meeting with Sarah and Katie, and so these pieces of evidence were highly

probative of his intent to entice a minor to commit sexual acts. Additionally, any



                                           6
prejudicial value was mitigated by the court’s limiting instruction. Because the

probative value of the images and chat were high, and their prejudicial value was

reduced by the court’s limiting instruction, their probative value was not

outweighed by the risk of unfair prejudice. Therefore, the district court did not

abuse its discretion in admitting this evidence.

      Assuming arguendo the district court erred in admitting the titles of video

files purportedly containing child pornography, reversal is not warranted. At trial,

Chase conceded he was the one who chatted with “Sarah.” He only challenged his

conviction on the basis he did not intend to actually entice a minor to commit

unlawful sexual acts. The Government presented an abundance of rebuttal

evidence, including transcripts of online chats where Chase explicitly said he

wanted to convert his fantasy into reality; the fact a search of his car contained the

exact items Chase had told “Sarah” he would bring to the encounter; and Chase’s

own unchallenged post-arrest admissions that had he not been caught, he intended

to engage in sexual activity with “Katie” insofar as she and her mother would

permit. This evidence at trial was supplemented by the images and by the chat

excerpt. Therefore, the jury convicted Chase based on “overwhelming evidence of

guilt.” See United States v. Harriston, 329 F.3d 779, 789 (11th Cir. 2003) (“We

have often concluded that an error in admitting evidence of a prior conviction was



                                           7
harmless where there is overwhelming evidence of guilt.”). As such, any error the

district court may have committed in admitting evidence of the video file names

was harmless, and does not require reversal. Id.

                                          III.

      Chase contends the district court incorrectly assessed its authority to grant a

departure under the Guidelines. In doing so, and subsequently declining to grant a

departure, Chase asserts, the district court treated the Guidelines as mandatory,

resulting in a procedurally unreasonable sentence.

      We examine a defendant’s sentence for both procedural and substantive

reasonableness under an abuse of discretion standard. United States v. Ellisor, 522

F.3d 1255, 1273 n.25 (11th Cir. 2008). The standard is deferential, taking into

account the totality of the circumstances. Gall v. United States, 128 S. Ct. 586,

591, 597 (2007). The party challenging the sentence carries the burden of

establishing unreasonableness. United States v. Flores, 572 F.3d 1254, 1270 (11th

Cir.), cert. denied, 130 S. Ct. 568 (2009). A sentence is procedurally unreasonable

if the district court fails to calculate or improperly calculates the Guidelines range,

treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a

sentence based on clearly erroneous facts, or fails to explain adequately the chosen

sentence. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008).



                                            8
      “We lack jurisdiction to review a district court’s decision to deny a

downward departure unless the district court incorrectly believed that it lacked

authority to grant the departure.” United States v. Dudley, 463 F.3d 1221, 1228

(11th Cir. 2006). Under U.S.S.G. § 5K2.22, “[i]n sentencing a defendant convicted

of an offense involving a minor victim under . . . chapter 117, of title 18, United

States Code: (1) Age may be a reason to depart downward only if and to the extent

permitted by § 5H1.1.” U.S.S.G. § 5K2.22. Under § 5H1.1, “[a]ge may be a

reason to depart downward in a case in which the defendant is elderly and infirm

and where a form of punishment such as home confinement might be equally

efficient as and less costly than incarceration.” U.S.S.G. § 5H1.1.

      The district court found Chase was neither elderly nor infirm, and on this

basis, rejected Chase’s request for a downward departure on the basis of his age.

This is consistent with the text of the Guidelines, which, as applicable to § 2422(b)

convictions, permit downward departures on the basis of age only when the

defendant is “elderly or infirm.” U.S.S.G. §§ 5H1.1 (emphasis added); 5K2.22.

Given the proscriptions in the Guidelines, the district court did not misconstrue its

authority to grant a departure after finding Chase was neither elderly nor infirm.

See Dudley, 463 F.3d at 1228. As such, its refusal to apply a departure was

discretionary, and we our without jurisdiction to review it. See id.



                                           9
      To the extent Chase otherwise challenges the sentence as procedurally

unreasonable for treating the Guidelines as mandatory, there is no evidence the

district court did so. See Livesay, 525 F.3d at 1091. By contrast, the district court

expressly acknowledged the advisory nature of the Guidelines and its discretion to

consider a variance, and commented it chose not to do so. Therefore, the sentence

is procedurally reasonable. See id.

                                           IV.

      In summary, binding precedent prevents Chase from succeeding on his

argument that § 2422(b) does not permit conviction when an actual minor is not

present. The images and an online chat excerpt obtained from Chase’s computer

were admissible under Rule 404(b), and to the extent the titles of the video files

were not, this error was harmless and does not mandate reversal. Finally, the

district court correctly assessed its authority to impose a downward departure, and

recognized the advisory nature of the Guidelines when imposing its sentence.

Accordingly, the sentence is reasonable.

      AFFIRMED.




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