                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 11 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50202

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00152-DSF-1

  v.
                                                 MEMORANDUM *
PHILLIP E. CALDWELL,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted July 16, 2010
                               Pasadena, California

Before: FARRIS and SILVERMAN, Circuit Judges, and ROBART, District
Judge.**

       Phillip Caldwell raises various challenges to his convictions under 18 U.S.C.

§§ 2422(b) and 2252A(a)(2)(A). We have jurisdiction under 28 U.S.C. § 1291.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.
      We affirm Caldwell’s § 2422(b) conviction. His conduct was punishable

under the federal enticement statute, as he attempted to induce “sexual activity for

which [he could] be charged with a criminal offense” under California law. 18

U.S.C. § 2422(b); see People v. Martinez, 11 Cal.4th 434, 444 (Cal. 1995); People

v. Austin, 111 Cal.App.3d 110, 114 (Cal. Ct. App. 1980). His arguments that

§ 2422(b) is unconstitutional fail under our settled precedent. See United States v.

Meek, 366 F.3d 705, 721-22 (9th Cir. 2004); United States v. Dhingra, 371 F.3d

557, 561-62 (9th Cir. 2004). The rule of lenity does not apply. The statutes are not

ambiguous.

      We affirm Caldwell’s § 2252(a)(2)(A) conviction. A rational trier of fact

could have found that the images were “lascivious exhibitions.” See 18 U.S.C.

§ 2256(2)(A)(v); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The district

court’s decision to exclude Caldwell’s proffered textbook image was not an abuse

of discretion. Caldwell was permitted to argue that the four submitted photos

resembled clinical photos. The court’s admission of Exhibit 38 was not an abuse

of discretion. See United States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001). It

also was not an abuse of discretion to admit the chat references to, and the file

name of, a video that Caldwell sent to whom he thought was a minor child. The

record is sufficient to support conviction.


                                              2
      It was not clear error to impose a $17,500 fine. The Sentencing Guidelines

range suggested a fine of between $17,500 and $175,000. The court made

undisputed factual findings to support the imposition of the fine. Military pensions

may be taken into account for these purposes. See Gleave v. Graham, 954 F. Supp.

599, 610-11 (W.D.N.Y. 1997).

      AFFIRMED.




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