                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4378


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DAVID ALEXANDER BATTLE, II,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:15-cr-00274-CMH-1)


Submitted: May 18, 2017                                           Decided: June 8, 2017


Before DUNCAN, KEENAN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Geremy C. Kamens, Federal Public Defender, Frances H. Pratt, Cadence Mertz, Assistant
Federal Public Defenders, Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Jay V. Prabhu, Assistant United States Attorney, Lauren E. Britsch,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      A federal jury convicted David Alexander Battle, II of four counts of production

of child pornography, in violation of 18 U.S.C. § 2251(a) (2012); attempted coercion and

enticement of a minor to engage in illegal sexual activity, in violation of 18 U.S.C.

§ 2422(b) (2012); two counts of receipt of child pornography, in violation of 18 U.S.C.

§ 2252(a)(2), (b) (2012); and distribution of child pornography, in violation of 18 U.S.C.

§ 2252(a)(2).     The district court sentenced Battle to a total of 300 months of

imprisonment and he now appeals. For the reasons that follow, we affirm.

      On appeal, Battle first challenges the sufficiency of the evidence to support his

convictions for production of child pornography and attempted coercion of a minor to

engage in illegal sexual activity, arguing that the Government failed to demonstrate that

he acted with the specific intent that visual depictions be produced. We review a district

court’s decision to deny a Fed. R. Crim. P. 29 motion for a judgment of acquittal de novo.

United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). A defendant challenging the

sufficiency of the evidence faces a heavy burden. United States v. Beidler, 110 F.3d

1064, 1067 (4th Cir. 1997). In determining whether the evidence is sufficient to support

a conviction, we determine “whether there is substantial evidence in the record, when

viewed in the light most favorable to the government, to support the conviction.” United

States v. Palacios, 677 F.3d 234, 248 (4th Cir. 2012) (internal quotation marks omitted).

Substantial evidence is “evidence that a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of a defendant’s guilt beyond a

reasonable      doubt.”   Id.   (internal   quotation   marks   omitted).   Furthermore,

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“[d]eterminations of credibility are within the sole province of the jury and are not

susceptible to judicial review.” Id. (internal quotation marks omitted).

       Section 2251(a) prohibits a person from persuading, inducing, or enticing any

minor to engage in sexually explicit conduct, “with the intent that such minor engage in

any sexually explicit conduct for the purpose of producing any visual depiction of such

conduct,” if the person knows or has reason to know that the visual depiction was

produced or transmitted using materials that have been transported in or affecting

interstate commerce. “As the text indicates, § 2251(a) contains a specific intent element:

the government was required to prove that production of a visual depiction was a purpose

of engaging in the sexually explicit conduct.” United States v. Palomino-Coronado, 805

F.3d 127, 130 (4th Cir. 2015). Thus, the defendant must act with the specific intent that a

visual depiction be produced, while that need not be his only purpose in committing the

offense. Id.; see also United States v. Ortiz-Graulau, 526 F.3d 16, 19 (1st Cir. 2008)

(defendant need only have a purpose to make a visual depiction). The government may

meet its burden of proving that the defendant acted with such a purpose through

circumstantial evidence. Palomino-Coronado, 805 F.3d at 131. We have thoroughly

reviewed the record and conclude that there was substantial evidence from which the jury

could conclude that Battle acted with a purpose of producing visual depictions of minors

engaged in sexually explicit conduct.

       Battle also challenges the constitutionality of the statute, arguing that the statute is

overbroad. “This court reviews a challenge to the constitutionality of a federal statute de

novo.” United States v. Malloy, 568 F.3d 166, 171 (4th Cir. 2009). “The Constitution

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gives significant protection from overbroad laws that chill speech within the First

Amendment’s vast and privileged sphere.” Ashcroft v. Free Speech Coalition, 535 U.S.

234, 244 (2002). “[A] law may be invalidated as overbroad if a substantial number of its

applications are unconstitutional, judged in relation to the statute’s plainly legitimate

sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010) (internal quotation marks

omitted); see also United States v. Williams, 553 U.S. 285, 292 (2008) (“[S]tatute’s

overbreadth must be substantial, not only in an absolute sense, but also relative to the

statute’s plainly legitimate sweep.”) (emphasis in original).

       Battle argues that the First Amendment protects images depicting child

pornography where the minor knowingly produces the images himself because the minor

is not being physically abused in such a situation. We disagree. See Malloy, 568 F.3d at

175 (the government “may legitimately protect children from self-destructive decisions

reflecting the youthful poor judgment that makes them, in the eyes of the law, beneath the

age of consent”) (internal quotation marks omitted); see also Williams, 553 U.S. at 297

(finding 18 U.S.C. § 2252A(a) (2012) not overbroad because it “criminalizes only offers

to provide or requests to obtain contraband—child obscenity and child pornography

involving actual children, both of which are proscribed[,] and the proscription of which is

constitutional”).

       Battle next argues that the district court abused its discretion in refusing his

proposed jury instruction on the specific intent element. “We review a district court’s

decision to give or refuse to give a jury instruction for abuse of discretion.” United

States v. Smith, 701 F.3d 1002, 1011 (4th Cir. 2012). We will find an abuse of discretion

                                             4
in failing to provide an instruction to the jury where (1) the instruction was legally

correct, (2) not substantially covered by the charge to the jury, and (3) dealt with a point

in the trial so important that the failure to provide the instruction seriously impaired the

defendant’s ability to conduct a defense. Id. Here, the district court properly instructed

the jury on the elements of a § 2251(a) offense as this court has previously stated them,

including the specific intent element. See, e.g., Malloy, 568 F.3d at 169. The court’s

instructions, therefore, adequately covered the proposed charge.

       Battle also asserts that the district court erred in denying his motion for a new trial

based on comments the prosecutor made during rebuttal argument. “We review for abuse

of discretion a district court’s denial of a motion for a new trial.” United States v. Chong

Lam, 677 F.3d 190, 203 (4th Cir. 2012). “A prosecutor’s statements at trial constitute

reversible error only if they were (1) improper and (2) prejudicially affected the

defendant’s substantial rights so as to deprive the defendant of a fair trial.” Id. (internal

quotation marks omitted). The factors relevant to this determination include:

       (1) the degree to which the prosecutor’s remarks had a tendency to mislead
       the jury and to prejudice the accused; (2) whether the remarks were isolated
       or extensive; (3) absent the remarks, the strength of competent proof
       introduced to establish the guilt of the accused; and (4) whether the
       comments were deliberately placed before the jury to divert attention to
       extraneous matters. We also consider (5) whether the prosecutor’s remarks
       were invited by improper conduct of defense counsel, and (6) whether
       curative instructions were given to the jury.

Id. at 203-04 (alteration omitted). Based on these factors, we conclude that the district

court did not abuse its discretion in denying Battle’s motion for a new trial.




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       Finally, Battle challenges the procedural and substantive reasonableness of the

sentence. Specifically, Battle argues that the court failed to respond to his arguments for

a sentence of the statutory mandatory minimum of 15 years of imprisonment and failed to

conduct an adequate individualized assessment of his case in sentencing him.             In

addition, Battle contends that the below-Guidelines sentence was greater than necessary

to satisfy the statutory sentencing factors identified in 18 U.S.C. § 3553(a) (2012).

       We review a sentence for reasonableness, applying an abuse of discretion

standard. Gall v. United States, 552 U.S. 38, 41 (2007); see also United States v. White,

810 F.3d 212, 229 (4th Cir.), cert. denied. 136 S. Ct. 1833 (2016). In so doing, we

examine the sentence for “significant procedural error,” including “failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51. We

then review the substantive reasonableness of the sentence. “Any sentence that is within

or below a properly calculated Guidelines range is presumptively reasonable.” White,

810 F.3d at 230 (internal quotation marks omitted).

       In sentencing a defendant, a district court must conduct an “individualized

assessment” of the particular facts of every sentence, whether the court imposes a

sentence above, below, or within the Guidelines range. United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009). In addition, “[w]here [a party] presents nonfrivolous reasons

for imposing a different sentence than that set forth in the advisory Guidelines, a district

judge should address the party’s arguments and explain why he has rejected those

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arguments.” Id. at 328 (internal quotation marks omitted). By drawing arguments from

§ 3553 for a sentence different than the one ultimately imposed, an aggrieved party

sufficiently alerts the district court of its responsibility to render an individualized

explanation addressing those arguments, and thus preserves its claim.” United States v.

Lynn, 592 F.3d 572, 578 (4th Cir. 2010).

       When the claim is preserved, we review the issue for an abuse of discretion. Id. at

576, 579. If the district court abused its discretion, we will “reverse unless . . . the error

was harmless;” the government bears the burden of demonstrating the harmlessness of

such error. Id. at 576, 585. We have thoroughly reviewed the record and conclude that

any error in the court’s response to the parties’ sentencing arguments and explanation for

the sentence was harmless.       Moreover, we conclude that the sentence, which was

significantly below the advisory Guidelines range, is also substantively reasonable.

       We therefore affirm the district court’s judgment.          We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid in the decisional process.

                                                                                 AFFIRMED




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