     Case: 17-10990      Document: 00514386911        Page: 1     Date Filed: 03/14/2018




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                   No. 17-10990
                                 Summary Calendar
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                                                         March 14, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

                                                Plaintiff−Appellee,

versus

ELIAS OMAR SANTAMARIA,

                                                Defendant−Appellant.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 4:17-CR-9-1




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *

      Elias Santamaria appeals his conviction of, and sentence for, attempting
to persuade or entice a minor to engage in sexual activity in violation of
18 U.S.C. § 2422(b). He maintains that there is an insufficient factual basis


      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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.
    Case: 17-10990     Document: 00514386911        Page: 2   Date Filed: 03/14/2018


                                     No. 17-10990

for conviction because an individual charged with attempt under that statute
could not be certain whether his conduct would result in a conviction, render-
ing the statute unconstitutionally vague. In addition, he contends that the
statute is overbroad because it could authorize a conviction for constitutionally
protected speech.

      Santamaria maintains that his challenge to the factual basis for his plea,
despite being raised for the first time on appeal, should not be reviewed for
only plain error. As he concedes, however, this court has held that if a defen-
dant did not challenge the factual sufficiency of his plea in the district court,
we will review such a claim for plain error. See United States v. Trejo, 610 F.3d
308, 313 (5th Cir. 2010). Under that standard, Santamaria must show a for-
feited error that is clear or obvious and that affected his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, this court has
the discretion to correct the error if it seriously affects the integrity, fairness,
or public reputation of judicial proceedings. See id.

      In United States v. Howard, 766 F.3d 414, 429−30 (5th Cir. 2014), we
held that § 2422(b) was not unconstitutionally vague, because an “attempt” to
commit an offense had acquired an ordinary plain meaning, and the scienter
requirement would limit prosecutorial discretion. Moreover, we concluded that
the statute was not overbroad, because an individual knowingly attempting to
induce a minor to engage in illegal sexual activity is not engaged in protected
speech. Id. at 430. Santamaria concedes that Howard forecloses his challenge
to the factual basis for his plea.

      Accordingly, the government’s motion for summary affirmance is
GRANTED, its alternative motion for an extension of time to file its brief is
DENIED, and the judgment is AFFIRMED.



                                          2
