     Case: 17-40430      Document: 00514493797         Page: 1    Date Filed: 05/31/2018




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

                                      No. 17-40430
                                                                                Fifth Circuit

                                                                              FILED
                                                                          May 31, 2018

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

ANASTASIO MONSIVAIS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:16-CR-512-1


Before BARKSDALE, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant Anastasio Monsivais was convicted of an attempt offense
under 18 U.S.C. § 2422(b), which prohibits, inter alia, knowingly persuading,
inducing, or enticing a person under the age of eighteen to engage in criminal
sexual activity. He challenges the district court’s decision to admit extrinsic-
act evidence at trial and the court’s failure to apply a three-point “attempt”




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40430
reduction to his base offense level at sentencing.       We AFFIRM both his
conviction and his sentence.
                                      I
        In March 2016, Department of Homeland Security Agent Jeffery
Williams posed online as a thirteen-year-old girl named “Erin” as part of an
undercover investigation. At about 9:30 p.m. on March 31, 2016, Monsivais,
who would have been able to see that “Erin” said she was thirteen, messaged
her. Monsivais told “Erin” that he was a truck driver, asked where she was
from, and asked her for pictures. Agent Williams sent pictures of a female
undercover agent. After seeing the pictures, Monsivais asked, “How old are
you sweetheart[?] You can’t be more than twenty-two[.] Okay maybe 25[.]”
“Erin” responded that she was thirteen. Monsivais responded, “Wow!! When
I met my ex-wife her daughter was 12 years old but she look [sic] like she was
20[.]   [S]he was already well formed[.]   We became very close[.]”       “Erin”
responded, “cool,” and Monsivais continued, “She wanted me to teach you [sic]
about all the things that men and women do together[.] She wanted me to
teach her[.] And she was always rub [sic] her butt up against me[.]”
        Monsivais went on to ask “Erin” questions of a sexual nature. “Erin”
responded favorably to Monsivais’s questions, and soon he was describing in
explicit detail sexual acts he wanted to do with “Erin,” claiming that he had
done the same things with his twelve-year-old stepdaughter. Monsivais and
“Erin” exchanged some more messages and pictures that night and the next
day, eventually planning to meet in person. They agreed to meet at a parking
lot that “Erin” claimed was near her house. Monsivais drove to the parking
lot, where he was arrested. Once he was in custody, Monsivais admitted to
sending the messages, but denied believing that “Erin” was a minor.
        Monsivais was indicted under 18 U.S.C. § 2422(b) for attempting to
persuade, induce, entice, or coerce an individual who is under eighteen years
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                                      No. 17-40430
of age to engage in sexual activity in violation of Section 22.011(a)(2) of the
Texas Penal Code. 1 At trial, the Government’s case rested mainly on the
conversations between Monsivais and “Erin” and Monsivais’s custodial
statements.       The Government also presented evidence, obtained from
Monsivais’s cellphone, of his conversation with “Jane Doe,” an apparent
minor. 2
       The Jane Doe conversation, which took place via Facebook Messenger
around the same time as the conversation with “Erin,” was as follows:
       Monsivais: Good morning to you Miss [Jane Doe] how are you this
                  morning sweetheart
       Jane Doe: I’m ok so how old are u
       Monsivais: I am 55 [Jane]
                  How old are you about 18 19 20
                  You might be a little bit older
                  Hey [Jane] are you there
       Jane Doe: Lol no read my profile
       Monsivais: I thought I did read it you still awake
                  I drive a truck for a living and I lost my signal there
                  for a few hours
                  [smiley face]
                  Omg!! You are 12 years old
                  That’s cool we can be friends right, boy have I got a
                  story for you about a 12 year old that I knew once my
                  stepdaughter!
                  I’ve been divorced for a while now but back then
                  Anyhow let me know if you’re still awake




       1 We have held that the prosecution of a § 2422(b) offense based on a conversation
with an adult law enforcement agent posing as a minor is not subject to a legal impossibility
defense. United States v. Farner, 251 F.3d 510, 513 (5th Cir. 2001).
       2 The court has used a pseudonym due to the possibility that Jane Doe is a minor.

Aside from what is discussed below, the Government did not produce evidence that the person
conversing with Monsivais was actually twelve years old. However, Monsivais did not
produce any evidence tending to show that Jane Doe was misrepresenting her age.
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                                  No. 17-40430
The prosecution also introduced a screenshot of Jane Doe’s Facebook profile,
which included a picture of a very young-looking girl and the statement, “I’m
12 I like to have fun I’m silly and I goofy.”
        The defense objected to the admission of the conversation, arguing that
it was not admissible for any non-propensity purpose, see FED. R. EVID. 404(b),
and that, even if the conversation were admissible for such a purpose, its
prejudicial effect would substantially outweigh any probative value, see FED.
R. EVID. 403. The defense also objected to the screenshot of the profile as
cumulative and prejudicial.      The district court ruled that the Jane Doe
conversation was admissible, apparently inferring that Monsivais’s mention of
his twelve-year-old stepdaughter suggested his intent to tell Jane Doe about
having sex with his stepdaughter and concluding that the evidence had “a lot
of meat in there pertinent to the case.” The court also ruled that the screenshot
of the profile was admissible. Neither side requested, and the district court
did not give, a specific limiting instruction for the Jane Doe evidence.
        In its closing argument at trial, the defense argued that the Government
failed to meet its burden of proving that Monsivais believed that “Erin” was a
minor. The defense argued that Monsivais believed that he was having a
sexual conversation with an adult woman pretending to be a child,
emphasizing that the pictures of “Erin” did not appear to portray a thirteen-
year-old girl and that Monsivais said to “Erin” that he thought she was “22 or
25.”     Defense counsel also argued that the Government had entrapped
Monsivais.
        In its rebuttal summation, the Government emphasized the Jane Doe
evidence, “If you all have any lingering doubt in you all’s mind about this
Defendant’s predisposition to want to have sex with children, or if you have
any lingering doubt that this was an honest mistake, I don’t think you need to
go any further than the [Jane Doe] conversation.” After putting up a picture
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                                  No. 17-40430
of the conversation as it would have appeared on Monsivais’s phone, which
included a thumbnail picture of Jane Doe, the Government pointed to
similarities between what Monsivais told Jane Doe and what he told “Erin,”
highlighting his mention of his stepdaughter.         Finally, the Government
contended that, based on the picture of Jane Doe, it was unbelievable that
Monsivais thought that Jane Doe “was 18, 19, or 20 years old,” suggesting that
Monsivais was following “a script he has . . . to entice children.”
      The jury unanimously found Monsivais guilty.           At sentencing, the
district court imposed a 130-month, within-Guidelines sentence. Monsivais
timely appealed.
                                        II
      Federal Rule of Evidence 404(b)(1) provides that “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the
character.” However, such “evidence may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” FED. R. EVID. 404(b)(2). Even
if evidence is admissible under Rule 404(b)(2), under Rule 403, “[t]he court may
exclude relevant evidence if its probative value is substantially outweighed by
a danger of . . . unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.” A
district court’s admission of extrinsic-act evidence over a Rule 404(b) objection
is reviewed under a “heightened” abuse of discretion standard, which requires
that evidence be “strictly relevant” to the charged offense. United States v.
Jackson, 339 F.3d 349, 354 (5th Cir. 2003) (first quoting United States v.
Wisenbaker, 14 F.3d 1022, 1028 (5th Cir. 1994); then quoting United States v.
Hays, 872 F.2d 582, 587 (5th Cir. 1989)). Conversely, a district court’s Rule
403 ruling will be reversed “only rarely and only when there has been a clear
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                                    No. 17-40430
abuse of discretion.” United States v. Lewis, 796 F.3d 543, 545 (5th Cir. 2015)
(quoting United States v. Dillon, 532 F.3d 379, 387 (5th Cir. 2008)).
                                           A
      Monsivais first claims that the Jane Doe conversation and profile picture
were not admissible under Rule 404(b) because they were not relevant for any
purpose other than to show his propensity to initiate online conversations with
young girls. This evidence, however, is highly relevant to the critical disputed
issue: whether Monsivais believed he was talking to a minor during his
conversation with “Erin.”
      Monsivais does not contest that Jane Doe’s profile depicts a very young-
looking girl. Nor could he. Jane Doe’s profile picture, which was displayed in
the Messenger app and on her profile page, portrays a girl with a round face
whose adult teeth appear to be still growing in. She is wearing a pastel-colored
tee-shirt depicting a cartoon cookie and a cartoon milk carton. It is highly
improbable that a person who viewed Jane Doe’s Facebook profile—which
expressly states that she is twelve—would believe that Jane Doe was older
than eighteen. 3
      In his conversation with Jane Doe, Monsivais indicated that he had
viewed Jane Doe’s profile but nonetheless asked her if she was “18 19 20” or “a
little bit older.” At trial, Monsivais relied on an early message that he sent to
“Erin” in which he said, “How old are you sweetheart[?] You can’t be more
than twenty-two[.] Okay maybe 25[,]” contending that this was reflective of
his actual belief that she was an adult. Monsivais’s parallel statements to Jane
Doe make this argument less plausible.



      3 The Government adduced sufficient evidence from which a reasonable jury could
conclude that the conversation occurred, and Monsivais does not claim otherwise. See FED.
R. EVID. 104(b). And because the conversation provides a sufficient basis for a jury to
conclude that Monsivais viewed Jane Doe’s profile, the profile is also relevant. See id.
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                                 No. 17-40430
      Monsivais also told Jane Doe that he had “a story” about when his
stepdaughter was twelve. This was a topic Monsivais brought up early on in
his conversation with “Erin” as well. Monsivais’s immediate mention of his
twelve-year-old stepdaughter to Jane Doe, someone he likely believed was a
child, supports that he also believed “Erin” was a child.
      Furthermore, Monsivais’s only stepdaughter was in her forties at the
time of his conversation with Jane Doe. It thus seems odd that Monsivais’s
first thought when encountering a child would be to mention a time, decades
ago, when he had a young stepdaughter.          And when “Erin” responded to
Monsivais’s comments about his stepdaughter, he followed up with explicit
descriptions of having sex with his stepdaughter. A reasonable jury could
conclude from this evidence that had Jane Doe continued to participate in the
conversation, Monsivais would have also told her that he had had sex with his
twelve-year-old stepdaughter. This rebuts Monsivais’s contention that he only
told “Erin” about having sex with his stepdaughter to facilitate the sexual
fantasy of someone he believed was an adult pretending to be a child.
      In these ways, the Jane Doe evidence was relevant to demonstrate that
Monsivais in fact believed that “Erin” was a thirteen-year-old girl; it does not
just show his propensity to talk to underage girls. Accordingly, the district
court did not abuse its discretion in finding the evidence admissible under Rule
404(b) for a purpose other than propensity.
                                       B
      Monsivais argues that even if the Jane Doe evidence was relevant to an
issue other than propensity it ought to have been excluded under Rule 403.
Monsivais contends that the probative value of the Jane Doe evidence was
“barely detectable” and that the Government’s need to resort to it was low,
given the direct evidence of Monsivais’s belief as to “Erin’s” age. As noted,
Monsivais’s principal argument below was that he did not believe that “Erin”
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                                No. 17-40430
was a minor. While it is true that the Government had some direct evidence
of Monsivais’s belief that “Erin” was a minor, some of the pictures “she” sent
portray a woman who appears significantly older than thirteen, and Monsivais
made comments like, “You do not look 13.” Thus, we cannot say that the
Government did not need to resort to extrinsic evidence relevant to the central
disputed issue at trial.
      For reasons already discussed, the Jane Doe evidence was generally
probative of Monsivais’s belief regarding “Erin’s” age and it was directly
responsive to several of Monsivais’s defenses. The Jane Doe evidence rebuts
the argument that his statements to “Erin” about her age accurately reflected
his beliefs and contradicts his contention that he only brought up having sex
with his twelve-year-old stepdaughter to facilitate a roleplaying scenario
initiated by “Erin.” In light of Monsivais’s own arguments, then, the Jane Doe
evidence is highly probative. See United States v. Wolford, 386 F. App’x 479,
484 (5th Cir. 2010) (defendant’s roleplaying defense imbued his statements
that he was interested in having sex with minors and that he had previously
raped a minor “with great probative value”).
      Monsivais claims that, regardless of its probative value, the Jane Doe
evidence was unfairly prejudicial and likely “to mislead the jury and confuse
the issues,” as its introduction encouraged the jury to associate Monsivais’s
behavior with Jane Doe, rather than an agent posing as a minor. To be sure,
there is inherent prejudice in introducing evidence that Monsivais approached
Jane Doe, in light of her young-looking picture. However, Rule 403 does not
require the exclusion of any prejudicial evidence, only that which carries such
a great risk of prejudice that it substantially outweighs the probative value.
As explained below, we cannot say that the prejudicial aspects of the Jane Doe
evidence are so great as to substantially outweigh its significant probative
value.
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                                      No. 17-40430
       The oft-cited indicators of unfairly prejudicial evidence include the
heinousness, vel non, of the extrinsic act; its magnitude relative to the offense
conduct; and the extent to which the evidence occupied the jury’s time at trial.
See, e.g., United States v. Fortenberry, 860 F.2d 628, 632 (5th Cir. 1988). Those
hallmarks are lacking here. In contrast to the evidence supporting the offense
conduct, which included sexually explicit descriptions of statutory rape, the
conversation with Jane Doe is not especially inflammatory. As it was not
explicitly sexual, the jury was unlikely to believe, for example, that Jane Doe
had suffered psychological harm as a result of Monsivais’s actions and,
accordingly, less likely to want to punish Monsivais for this conduct. See FED.
RULE EVID. 403, Advisory Committee’s Notes to 1972 Proposed Rules (“‘Unfair
prejudice’ within its context means an undue tendency to suggest decision on
an improper basis, commonly, though not necessarily, an emotional one.”); cf.
United States v. Grimes, 244 F.3d 375, 385 (5th Cir. 2001) (“Normally, the
danger of a jury’s reprisal for unpunished extrinsic activity is likely to be less
when the activity is merely ‘bad’ and not criminal.”). Nor did the Jane Doe
evidence consume much of the trial. See Fortenberry, 860 F.2d at 632.
       With respect to the profile picture, Monsivais argues that the only
information conveyed was cumulative of the conversation exhibit. However,
the profile picture is much larger and clearer than the thumbnail displayed in
the conversation exhibit and the profile also contains the childish statement
“I’m 12 I like to have fun I’m silly and I goofy.” Both differences have a
tendency to prove that Monsivais believed that Jane Doe was twelve. 4



       4Monsivais also complains that the prosecution failed to provide proper notice that it
would seek to introduce the picture of Jane Doe’s profile, though it is unclear whether he is
arguing that the lack of notice resulted in reversible error. Assuming he is making this
argument, he concedes that he did not raise it below, and thus our review would be for plain
error. See United States v. Hernandez, 690 F.3d 613, 620 (5th Cir. 2012). As he does not
explain how any error was plain, how it affected his substantial rights, or why we should
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                                       No. 17-40430
       To the extent the jury might be tempted to punish Monsivais for his
conversation with Jane Doe, the district court’s instructions helped to abate
this danger. The court instructed:
       I caution you that you are here to decide only the guilt or innocence
       of the Defendant. First of all, he’s not on trial for any other act or
       offense that’s not charged here. There were discussions about
       things he—in his own mouth about things that he may or not have
       done on other occasions, but he’s not on trial for anything like that.
       He’s on trial only for what happened or didn’t happen in this
       particular case that we’ve heard all day long about.

While certainly not as curative as it could have been, 5 this instruction at least
reminded the jury to focus on the offense conduct. See United States v. Tafoya,
757 F.2d 1522, 1527 & n.7 (5th Cir. 1985) (holding that a similarly imprecise
instruction helped to alleviate prejudice).
       Finally, Monsivais argues that the prosecutor “expressly argued
propensity,” thereby increasing the probability that the jury would use the
Jane Doe evidence for that impermissible purpose.                     It is true that the
Government appeared to argue that the Jane Doe evidence supported
propensity, encouraging the jury to use the Jane Doe evidence to evaluate
Monsivais’s “predisposition to want to have sex with children.”                           The
Government also seemed to imply at trial that the evidence actually proved
that there was an attempted enticement of Jane Doe, asserting in its rebuttal
argument that in his conversation with Jane Doe, Monsivais “was following a
script. It’s a script he has basically to entice children. You know, it’s a plan
that he puts out, you know, who knows how many times.” Though we are




exercise our discretion to correct the alleged error, he has forfeited any such argument. See,
e.g., United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006).
        5 We note that, even though the parties did not request a limiting instruction, this is

a case in which it would have been appropriate for the court to explain the limited permissible
uses of the Jane Doe evidence.
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                                      No. 17-40430
troubled by aspects of this summation, our disposition today does not hinge on
the propriety of the prosecution’s closing argument, but on the propriety of
admitting the Jane Doe evidence. Even accepting that a closing argument can
render evidence inadmissible under Rule 403, 6 the focus of the prosecution’s
closing argument was that the statement to “Erin” that she looked older
appears disingenuous in light of the Jane Doe evidence. Thus, while certain
statements appear to invite impermissible propensity inferences, the improper
aspects of the closing argument did not predominate over the probative aspects
of the closing argument.
       To demonstrate reversible error, Monsivais must show that the evidence
was “substantially” more prejudicial than probative, see United States v. El-
Mezain, 664 F.3d 467, 508 (5th Cir. 2011), and that the district court’s
judgment to the contrary constituted a “clear abuse of discretion,” United
States v. Curtis, 635 F.3d 704, 716 (5th Cir. 2011) (quoting United States v.
Setser, 568 F.3d 482, 495 (5th Cir. 2009)).            While the Jane Doe evidence
presented some danger of unfair prejudice, in light of its significant probative
value, we cannot conclude that the district court committed a clear abuse of
discretion. Accordingly, we find no reversible error in the district court’s
admission of this evidence.
                                            III
       Monsivais argues that the district court erred by failing to apply a three-
point base-offense-level reduction under U.S.S.G. § 2X1.1(b)(1). Because, as
Monsivais concedes, he did not raise this objection with the district court, we
review the claimed misapplication of the Guidelines for plain error. See United
States v. Hernandez, 690 F.3d 613, 620 (5th Cir. 2012). To establish plain


       6We have held that a closing argument can “augment[]” prejudice, but that “[r]eversal
on the basis of a closing argument is justified only on a showing of actual prejudice.”
Fortenberry, 860 F.2d at 635 n.15. Monsivais does not attempt this showing.
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                                  No. 17-40430
error, Monsivais must show: (1) an error or defect “that has not been
intentionally relinquished or abandoned”; (2) that the legal error was “clear or
obvious, rather than subject to reasonable dispute”; and (3) that the error
affected his substantial rights. United States v. Escalante-Reyes, 689 F.3d 415,
419 (5th Cir. 2012) (en banc) (quoting Puckett v. United States, 556 U.S. 129,
135 (2009)). If these three elements are satisfied, this court may remedy the
error “if the error seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. (quoting Puckett, 556 U.S. at 135).
      Attempt offenses are generally governed by § 2X1.1(b)(1), which provides
that, if a defendant is convicted of attempt, his offense level should be
decreased “by 3 levels, unless the defendant completed all the acts the
defendant believed necessary for successful completion of the substantive
offense . . . .” The Government does not contest that, by its terms, § 2X1.1
applies to Monsivais’s offense. Accord United States v. Crayton, 143 F. App’x
77, 79–81 (10th Cir. 2005) (upholding application of § 2X1.1 to 18 U.S.C.
§ 2422(b) attempt offense).     The parties only dispute whether Monsivais
believed he had completed all the acts that, had they in fact been completed,
would be sufficient to convict him for the substantive offense. See U.S.S.G.
§ 2X1.1(b)(1).
      18 U.S.C. § 2422(b) criminalizes “using the mail or any facility or means
of interstate or foreign commerce . . . [to] knowingly persuade[], induce[],
entice[], or coerce[] 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 attempt[ing] to do so.” “[Section] 2422(b) criminalizes an
intentional attempt to achieve a mental state—a minor’s assent—regardless of
the accused’s intentions vis-à-vis the actual consummation of sexual activities
with the minor.” United States v. Howard, 766 F.3d 414, 420 (5th Cir. 2014)
(quoting United States v. Dwinells, 508 F.3d 63, 71 (1st Cir. 2007)). The focus
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                                  No. 17-40430
of the offense is “persuading the minor to assent to sexual contact.” United
States v. Broussard, 669 F.3d 537, 548 (5th Cir. 2012).
      We find it did not constitute clear or obvious error to fail to apply a three-
point reduction, as the evidence reasonably supports that Monsivais believed
he had successfully persuaded “Erin” to assent to sexual contact. Monsivais
argues that the evidence does not show that he believed that he had
successfully completed the substantive offense because, “from his perspective,
he had still to meet with [“Erin”], travel somewhere with her, and then
convince her to actually engage in the [sex] act.” But Monsivais’s conversations
with “Erin” were explicitly sexual and appeared to anticipate that, upon
meeting, he and “Erin” would have sex. Monsivais told “Erin” that he had had
sex with his stepdaughter in his truck and suggested that his experience with
his stepdaughter was something that he would like to recreate with “Erin,”
which reasonably suggests that he might have thought “Erin” assented to
having sex in his truck. In any case, that “Erin” might change her mind en
route to another location does not affect that, in making concrete plans to meet
“Erin” near her house and getting “Erin” to agree to show up for a sexual
rendezvous, Monsivais had already apparently “persuad[ed her] to assent to
sexual contact.” Id.
      Monsivais said after he was arrested that he did not think “Erin” would
actually show up, which is countervailing evidence of his beliefs regarding
Erin’s assent. But our review is for plain error only. Monsivais does not cite,
and we are not aware of, any case that supports his arguments. “[G]enerally,
‘if a defendant’s theory requires the extension of precedent, any potential error
could not have been plain.’” United States v. Guillen-Cruz, 853 F.3d 768, 772
(5th Cir. 2017) (quoting United States v. Guzman, 739 F.3d 241, 246 n.8 (5th
Cir. 2014)) (internal quotation marks omitted). Because under the existing
caselaw there is room for reasonable debate about whether Monsivais qualified
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                                 No. 17-40430
for a reduction under § 2X1.1(b)(1), any error cannot have been clear or
obvious.   Cf. Broussard, 669 F.3d at 550 (“[A]s we have never addressed
whether obtaining a phone number and having conversations with a minor
about meeting for illicit sexual activity constitutes a substantial step toward
persuading a minor to engage in illicit sexual activity under § 2422(b) . . . any
error [with respect to the sufficiency of the factual basis for a guilty
plea] . . . could not be plain.”). Accordingly, Monsivais has failed to carry his
burden on plain-error review.
                                      ***
      For these reasons, we AFFIRM Monsivais’s conviction and sentence.




                                       14
