     Case: 12-60982      Document: 00512518291         Page: 1    Date Filed: 01/31/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                      No. 12-60982                          January 31, 2014
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff – Appellee
v.

LINO GAMEZ,

                                                 Defendant – Appellant




               Appeal from the United States District Court for the
                         Northern District of Mississippi
                             USDC No. 2:11-CR-166


Before JONES, WIENER, and GRAVES, Circuit Judges.
PER CURIAM:*
       Lino Gamez was convicted by a jury on four counts of traveling in
interstate commerce for the purpose of engaging in illicit sexual conduct with
another person, in violation of 18 U.S.C. § 2423(b), and was sentenced to 120
months of imprisonment. On appeal, he challenges the instructions given to
the jury on the elements of his offenses, evidence admitted at trial, and the
district court’s application of the Sentencing Guidelines. For the following
reasons, we AFFIRM the judgment of the district court.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 12-60982
                                    BACKGROUND
       Lino Gamez was charged in a six-count indictment in the Northern
District of Mississippi. Counts One and Two charged Gamez with “us[ing] a
minor to engage in sexually explicit conduct for the purpose of producing visual
depictions of said sexually explicit conduct,” in violation of 18 U.S.C. §§ 2251(a)
and 2256(2)(E). 1 Counts Three through Six charged Gamez with “travel[ing]
in interstate commerce . . . for the purpose of engaging in an illicit sexual act
with a person under 18 years of age,” specifically statutory rape under
Tennessee law, in violation of 18 U.S.C. § 2423(b). 2 However, the penalty sheet
attached to the indictment listed the statutory penalties for 18 U.S.C. § 2423(a)
– “knowingly transport[ing] an individual who has not attained the age of 18
years in interstate . . . commerce . . . with intent that the individual engage in
prostitution, or in any sexual activity for which any person can be charged with
a criminal offense” – rather than the penalties for § 2423(b). Whereas a
violation of § 2423(b) carries a penalty of imprisonment for not more than 30
years, a violation of § 2423(a) carries a penalty of imprisonment for not less
than 10 years or for life.
       At trial, T.G., a minor, testified that she and Gamez had an ongoing
sexual relationship over the course of several months in 2011, when she was
14 years old. Gamez was 22 years old at the time. T.G. testified that Gamez
would pick her up from her house in Walls, Mississippi, almost every day and


       1 Until 2003, 18 U.S.C. § 2256(2)(E) provided that “sexual explicit conduct” includes
“lascivious exhibition of the genitals or pubic area of any person.” However, § 2256 was
rewritten in 2003, eliminating subsection (2)(E). Gamez was acquitted of the two counts
charged under §§ 2251(a) and 2256(2)(E), and they are not at issue in this appeal; we
therefore do not consider this discrepancy further.

       2In fact, 18 U.S.C. § 2423(b) prohibits traveling in interstate commerce for the purpose
of engaging in “any illicit sexual conduct with another person,” and does not require that the
person be under 18 years of age.

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                                  No. 12-60982
drive her to Memphis, Tennessee, where he would have sex with her. T.G. also
described finding sexually explicit photos and videos of her on her cell phone,
which were apparently taken by Gamez without her knowledge. Over Gamez’s
objection, T.G. testified that after her relationship with Gamez ended, she
received mental health treatment at a hospital. She explained that she was
taking several psychiatric drugs that had been prescribed to her, but that these
drugs did not affect her ability to remember the events of the previous year or
to testify accurately. Ryan Arton and Tom Bohlke, both FBI agents, testified
that when they interviewed Gamez, he admitted to having sex with T.G. on
several occasions both in Mississippi and in Tennessee. According to Arton
and Bohlke, Gamez also admitted that he had taken photos and videos of
himself and T.G. having sex. Gamez did not testify.
      The district court instructed the jury that Gamez had been “charged in
Counts 3 through 6 with knowingly transporting a minor across state lines
with the intent to engage in illicit sexual activity.” The district court explained
that in order to convict Gamez of this offense, the jury must find three elements
to be proven beyond a reasonable doubt: (1) Gamez “knowingly transported the
person named in the count of the indictment . . . in interstate commerce”; (2)
“at the time of the transportation the person named in the indictment was less
than 18 years of age”; and (3) “at the time of the transportation, [Gamez]
intended that person would engage in sexual activity for which [he] could be
charged with a crime.”      The district court further explained that, under
Tennessee law, a defendant is guilty of statutory rape if he has sexual
intercourse with a minor under the age of 15 and if he is at least four years
older than the minor. Additionally, the district court instructed the jury that
“[t]he term to transport in interstate commerce means to move or carry someone
or call someone to be moved or carried from one state to another state.”


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                                 No. 12-60982
      The jury found Gamez guilty on Counts Three through Six but not guilty
on Counts One and Two. At sentencing, Gamez pointed out that his indicted
offense, § 2423(b), did not match the statute listed in the indictment’s penalty
sheet. Gamez stated that if he had known his sentence range was zero to 30
years rather than 10 years to life, he would have chosen to plead guilty rather
than proceed to trial. The prosecutor acknowledged that he had erroneously
cited the wrong statute in the penalty sheet, but maintained that “[t]he
indictment is what controls in the case.” The prosecutor also stated that he
would not have allowed Gamez to plead guilty to only an offense with no
mandatory minimum. The district court attempted to remedy the error by
awarding Gamez a two-point reduction for acceptance of responsibility that he
had lost by going to trial. Gamez’s guidelines range was thereby reduced to 97
to 121 months, and the district court ultimately sentenced him to 120 months
of imprisonment.
      Gamez now appeals. He first argues that because the district court
instructed the jury on an offense different from his indicted offense, he was
“tried and convicted on a charge for which he was never indicted,” which
violated his Fifth Amendment right to due process. He also argues that the
district court erred by admitting evidence of T.G.’s mental health treatment at
trial, which he contends was irrelevant and prejudicial. Finally, Gamez argues
that his sentence is substantively unreasonable because the district court
failed to award him a third point reduction for acceptance of responsibility.
                                DISCUSSION
I.    JURY INSTRUCTIONS
      Because Gamez did not object to the jury instructions, we review for
plain error. To demonstrate plain error, an appellant must show an error that
is clear or obvious and that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). To show that an error affected his substantial
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                                 No. 12-60982
rights, an appellant must demonstrate a reasonable probability of a different
result absent the error. See United States v. Morin, 627 F.3d 985, 998 (5th Cir.
2010). If the appellant makes such a showing, this court has the discretion to
remedy the error, but should do so only if the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Puckett, 556
U.S. at 135.
      Although Gamez suggests that he was “tried and convicted on a charge
for which he was never indicted,” this is inaccurate. The indictment charged
Gamez with violations of § 2423(b), and the judgment shows that he was
convicted and sentenced under § 2423(b). Moreover, the evidence introduced
at trial forcefully proved that he satisfied the elements of § 2423(b). The
problem is that the jury was instructed on the elements of the wrong offense –
§ 2423(a). However, even assuming this is an error that is clear or obvious,
Gamez cannot show that it affected his substantial rights. Gamez makes no
attempt to argue that the outcome of the trial would have been different had
the correct jury instructions been given. Rather, he implies (but does not
directly argue) that the prejudice requirement should be either assumed or
waived.
      The Supreme Court has explained that “a very limited class” of
“structural” errors can never be considered harmless under the “harmless
error” standard. United States v. Marcus, 560 U.S. 258, 263 (2010). The Court
has never explicitly held, however, that such “structural” errors automatically
satisfy the prejudice prong of the plain error standard. See Puckett, 556 U.S.
at 140-41 (explaining that the Court has declined to resolve this question on
several occasions).    Even assuming that some “structural” errors are
sufficiently fundamental as to relieve an appellant of the burden of showing
prejudice on plain error review, we conclude that an error in instructing the
jury on the elements of a charged offense is not such an error. In Pope v.
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                                  No. 12-60982
Illinois, 481 U.S. 497, 499-501 (1987), the petitioners were convicted under a
state obscenity offense that employed an unconstitutional definition of
“obscenity.” The instructions to the jury likewise contained this definition. Id.
However, the Court held that the convictions need not be reversed “if it can be
said beyond a reasonable doubt that the jury’s verdict . . . was not affected by
the erroneous instruction.” Id. at 502. In other words, “if a reviewing court
concludes that no rational juror, if properly instructed,” would have failed to
convict the appellants, “the convictions should stand.” Id. at 503. The Court
added that “[t]o the extent that cases prior to [Rose v. Clark, 478 U.S. 570
(1986)] may indicate that a conviction can never stand if the instructions
provided the jury do not require it to find each element of the crime under the
proper standard of proof, . . . after Rose, they are no longer good authority.” Id.
at 503 n.7.
      Assuming the jurors followed the instructions given, they concluded that
Gamez had knowingly transported T.G. across state lines with the intent that
she engage in sexual activity for which someone (i.e. Gamez) could be charged
with a crime. The evidence introduced at trial showed, without contradiction,
that Gamez had “transported” her across state lines by personally driving her,
and that the “sexual activity for which someone could be charged with a crime”
was, specifically, T.G. having sex with Gamez. Accordingly, by finding that the
elements of § 2423(a) had been met, the jury necessarily found that the
elements of § 2423(b) had also been met – that Gamez traveled in interstate
commerce for the purpose of engaging in illicit sexual conduct with T.G.
Accordingly, because we conclude beyond any reasonable doubt that the jury
would have convicted Gamez if the correct instructions had been given, we hold
that Gamez has not shown plain error.




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                                    No. 12-60982
II.    EVIDENCE OF MENTAL HEALTH TREATMENT
       Gamez argues that the district court erred by admitting irrelevant and
prejudicial evidence of T.G.’s mental health treatment.               Because Gamez
properly objected to the district court’s admission of this evidence, we review
the district court’s ruling for abuse of discretion, which is heightened in a
criminal case. United States v. Nguyen, 504 F.3d 561, 571 (5th Cir. 2007).
However, an error that does not affect the defendant’s substantial rights may
be excused as harmless, particularly when the other evidence of the
defendant’s guilt is “overwhelming.” Id. The prosecution has the burden of
proving beyond a reasonable doubt that an error was harmless. Id.
       In response to Gamez’s objection, the prosecutor stated that he “want[ed]
to get into the medication she is taking and whether it affects her ability to
recall or perceive what happened.” The district court overruled the objection
without explanation. We do not consider whether the district court’s ruling
was erroneous because any possible error was clearly harmless. T.G. briefly
explained that she had been treated for mental health at a hospital at some
point following her relationship with Gamez. She stated that the hospital had
prescribed Depakote (without explaining why it was prescribed), and that she
was currently taking Abilify, a sleeping medication, and an anti-anxiety drug
for post-traumatic stress.      At no point did T.G. blame her mental health
problems on Gamez or even express anger toward him.                   The evidence of
Gamez’s guilt was overwhelming, and we find no reasonable possibility that
the jury’s verdict was based on prejudice against Gamez rather than an honest
assessment of the evidence. 3




       3We also note that the jury acquitted Gamez on Counts One and Two despite evidence
that could have arguably supported a conviction; this hardly suggests prejudice toward
Gamez.
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                                 No. 12-60982
III.    ACCEPTANCE OF RESPONSIBILITY
        Gamez argues that his sentence is substantively unreasonable because,
in calculating his guidelines range, the district court failed to award him a
third point reduction for acceptance of responsibility. Because Gamez did not
object to his sentence before the district court, we review for plain error. An
error in calculating the applicable guidelines range affects the procedural
reasonableness of a sentence, not its substantive reasonableness. See Gall v.
United States, 552 U.S. 38, 51 (2007). In his brief, Gamez does not even cite
the applicable legal standard for awarding an additional point reduction for
acceptance of responsibility. Moreover, Gamez neither cites the factors we
consider in reviewing the substantive reasonableness of a sentence nor
attempts to apply them. Gamez has therefore not shown that his within-
guidelines sentence is either procedurally or substantively unreasonable.
                                CONCLUSION
        For the reasons explained above, we AFFIRM the judgment of the
district court.




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