                   Case: 12-10735          Date Filed: 02/14/2013   Page: 1 of 19

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10735
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 4:11-cr-00006-RLV-WEJ-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                    versus

RANDALL SCOTT ANDERSON,
a.k.a. Randocom,
a.k.a. ANDRCGA@aol.com,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (February 14, 2013)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Randall Anderson appeals his conviction for attempt to entice a minor to

engage in sexual activity, in violation of 18 U.S.C. § 2422(b), and he appeals his

324-month sentence, imposed at the low-end of the applicable Guidelines range,

as being procedurally and substantively unreasonable. The evidence at trial

showed that Anderson, through emails, phone calls, and a face-to-face meeting,

arranged with an undercover law enforcement agent posing as a stepfather to two

boys, ages 11 and 14, to have a sexual encounter with the two children at a

Georgia hotel. Anderson was arrested when he arrived at the hotel where the

sexual contact was to take place, and he had brought with him pornographic films,

an assortment of sex toys, condoms, and drugs that he had discussed administering

to the children. He stated, in his post-arrest interview and at trial, that he would

have gone through with the sexual encounter with the children. He also stated at

trial that he was aware of the ages of the children he intended to meet at the hotel.

      On appeal, Anderson argues that (1) the district court erred in excluding

expert testimony related to his intent to have sexual contact with minors; (2) the

court erred in applying a 2-level enhancement to the offense level for use of a

computer, pursuant to U.S.S.G. § 2G1.3(b)(3); (3) the court erred in applying a

2-level enhancement to the offense level for obstruction of justice, pursuant to

U.S.S.G. § 3C1.1; (4) the court erred in applying an 8-level enhancement to the

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offense level for an offense involving a minor under age 12, pursuant to

U.S.S.G. § 2G1.3(b)(5), when the “child” involved in Anderson’s offense conduct

was fictitious; (5) the court erred in applying the grouping rules, pursuant to

U.S.S.G. § 3D1.1, to account for Anderson’s conduct directed towards two child

victims when Anderson was only convicted on one count; (6) the court violated

Anderson’s constitutional rights by considering his HIV-positive status as a

sentencing factor; and (7) his 324-month sentence was substantively unreasonable.

After thorough review, we affirm.

                                          I.

      First, Anderson argues that the district court erred in excluding expert

testimony related to Anderson’s intent to have sexual contact with children.

      We review a district court’s decisions regarding the admissibility of expert

testimony for abuse of discretion and cannot reverse “unless the ruling is

manifestly erroneous.” United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir.

2004) (en banc) (quotation omitted). “[W]hen employing an abuse-of-discretion

standard, we must affirm unless we find that the district court has made a clear

error of judgment, or has applied the wrong legal standard.” Id. at 1259.

Moreover, even if a district court abused its discretion through an erroneous

evidentiary ruling, we will not reverse if the error was harmless. United States v.

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Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007). An error is harmless unless there

is a reasonable likelihood that it affected the defendant’s substantial rights, and we

will not reverse if there is sufficient evidence uninfected by any error that supports

the verdict. Id.

      When a defendant fails to object to an evidentiary ruling below, we review

only for plain error. United States v. Turner, 474 F.3d 1265, 1275 (11th Cir.

2007). When analyzing a claim under the plain-error standard, we will look to see

(1) whether the district court committed error, (2) whether the error was plain, and

(3) whether the error affected substantial rights. United States v. Bennett, 472

F.3d 825, 831 (11th Cir. 2006). “‘Plain’ is synonymous with ‘clear’ or,

equivalently, ‘obvious.’” United States v. Olano, 507 U.S. 725, 734, 113 S.

Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993). Error affects substantial rights when it

affects the outcome of the proceeding. Id. at 734, 113 S. Ct. at 1778. In order to

be reversible, this error also must “seriously affect[] the fairness, integrity or

public reputation of judicial proceedings.” Id. at 732, 113 S. Ct. at 1776

(quotations omitted).

      Expert testimony is admissible if it concerns scientific, technical, or other

specialized knowledge that will aid the jury or other trier of fact to understand or

resolve a fact at issue, is based on sufficient facts or data, is the product of reliable

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principles and methods, and the expert has reliably applied the principles and

methods to the facts of the case. Fed. R. Evid. 702. Generally, opinion evidence

“is not objectionable just because it embraces an ultimate issue.” Fed. R.

Evid. 704(a). However, federal rules prohibit an expert witness in a criminal case

from offering an opinion about whether the defendant had a mental state that

constitutes an element of the charged crime or of a defense. Fed. R. Evid. 704(b).

Additionally, a court may exclude even relevant evidence if its probative value is

substantially outweighed by a danger of, inter alia, misleading the jury. Fed. R.

Evid. 403.

      Section 2422(b) of Chapter 18 of the United States Code provides in

relevant part:

      Whoever, using . . . any facility or means of interstate or foreign
      commerce, . . . knowingly persuades, induces, entices, or coerces 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 attempts to do so, shall be . . . imprisoned not less
      than 10 years or for life.

18 U.S.C. § 2422(b). To convict a defendant of attempt, the government must

prove “(1) that the defendant had the specific intent to engage in the criminal

conduct for which he is charged and (2) that he took a substantial step toward

commission of the offense.” United States v. Murrell, 368 F.3d 1283, 1286 (11th



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Cir. 2004) (citations omitted). Thus, to obtain a conviction of attempted violation

of § 2422(b), the government must prove that the defendant, using a facility or

means of interstate or foreign commerce, “acted with a specific intent to persuade,

induce, entice, or coerce a minor to engage in unlawful sex.” Id. The government

is not required to show that a defendant knew his victim was under age 18 in order

to obtain a conviction under § 2422(b). See United States v. Daniels, 685 F.3d

1237, 1248-50 (11th Cir.), petition for cert. filed, (U.S. Sept. 28, 2012) (No.

12-6556).

      “An affirmative defense of entrapment requires two elements:

(1) government inducement of the crime; and (2) lack of predisposition on the part

of the defendant.” United States v. Sistrunk, 622 F.3d 1328, 1333 (11th Cir. 2010)

(quotation omitted). The defendant bears the burden of showing evidence that the

government persuaded or coerced him to commit the crime, and after he meets this

burden “the question of entrapment becomes a factual one for the jury to decide.”

Id. (quotation omitted).

      At trial, Anderson sought to introduce evidence from an expert report from

Dr. Michael Hilton, a doctor who had evaluated Anderson. The district court ruled

that Dr. Hilton was able to testify as to a majority of the report, but that he was not

permitted to testify as to one paragraph of the report containing, inter alia, Dr.

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Hilton’s opinions that Anderson “described a sexual history that is inconsistent

with pedophilic behavior (sex with underage individuals)”; the fact that Anderson

“admitted to having had sexual fantasies in the past towards old teenage males

which is not unusual and not indicative of pedophilia or of being an at risk

individual for having sex with minors”; and Dr. Hilton’s opinion that, “I see no

credible evidence in my examination that suggests that Mr. Anderson has

pedophilic interests. The circumstances surrounding his arrest do indicate that

manipulation . . . did occur.”

      The district court did not abuse its discretion in excluding the proffered

expert testimony that Anderson did not intend to have sex with the child victims

and that Anderson was enticed by law enforcement. Testimony by Dr. Hilton as to

Anderson’s intent would address a mental state that was an element of the charged

crime, see Murrell, 368 F.3d at 1286, and whether Anderson was predisposed to

engage in sexual conduct with minors was a mental state relevant to his

entrapment defense, see Sistrunk, 622 F.3d at 1333. Admission of such testimony

would have violated Federal Rule of Evidence Rule 704(b). Even if Anderson

could establish that the court abused its discretion in excluding this expert

testimony, the error would be harmless because there was sufficient evidence

uninfected by the error to support the guilty verdict. Additionally, Anderson fails

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to show that the court’s exclusion of expert testimony regarding his general sexual

interests was plain error1 and, in light of the overwhelming evidence supporting

the jury’s verdict, he cannot show that any error affected his substantial rights.

See Olano, 507 U.S. at 734, 113 S. Ct. at 1778.

                                               II.

       Second, Anderson argues that the district court erred in applying a two-level

enhancement to his offense level for “use of a computer.”

       We review factual findings for clear error, and review application of the

Sentencing Guidelines to those facts de novo. United States v. McGuinness, 451

F.3d 1302, 1304 (11th Cir. 2006). In fashioning an appropriate sentence, the

district court must first accurately calculate the appropriate advisory Guidelines

range. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). “After it

has made this calculation, the district court may impose a more severe or more

lenient sentence as long as the sentence is reasonable.” Id.

       Section 2G1.3(b)(3) of the United States Sentencing Guidelines provides for

a two-level increase to the offense level if an offense involved the use of a

computer or an interactive computer service to “entice, encourage, offer, or solicit



       1
                Because Anderson raised this argument for the first time on appeal, we review
only for plain error. See Turner, 474 F.3d at 1275.

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a person to engage in prohibited sexual conduct with [a] minor.” U.S.S.G.

§ 2G1.3(b)(3). The application note for this provision explains that it is intended

to apply to the use of a computer to communicate directly with a minor or with a

person who exercises custody, care, or supervisory control of the minor. Id.

comment. (n.4).

      Anderson argues that the Sentencing Guidelines enhancement for use of

computers is “irrational.” But the district court was obligated to correctly

calculate Anderson’s applicable Guidelines range, and the court did not clearly err

in finding that Anderson used a computer in the commission of the offense;

therefore, the district court properly applied the two-level enhancement for use of

a computer.

                                         III.

      Third, Anderson argues that the district court erred in applying a two-level

enhancement to his offense level for obstruction of justice.

      Again, we review factual findings for clear error, and review application of

the Sentencing Guidelines to those facts de novo. McGuinness, 451 F.3d at 1304.

“Where . . . the district court must make a particularized assessment of the

credibility or demeanor of the defendant, such as when applying the obstruction of

justice enhancement for perjury, we accord special deference to the district court’s

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credibility determinations.” United States v. Banks, 347 F.3d 1266, 1269 (11th

Cir. 2003).

      Pursuant to U.S.S.G. § 3C1.1, a defendant may qualify for a two-level

enhancement if he or she “willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect to the investigation,

prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1.

An offender may obstruct or impede justice by “committing, suborning, or

attempting to suborn perjury.” Id. comment. (n.4(B)). For the purpose of applying

this enhancement, perjury includes giving “false testimony concerning a material

matter with the willful intent to provide false testimony, rather than as a result of

confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87,

94, 113 S. Ct. 1111, 1116, 122 L. Ed. 2d 445 (1993). For purposes of § 3C1.1,

“material” means “evidence, fact, statement, or information that, if believed,

would tend to influence or affect the issue under determination.” U.S.S.G. §

3C1.1, comment. (n.6).

      “When applying this enhancement, the district court [should] make specific

findings as to each alleged instance of obstruction by identifying the materially

false statements individually.” United States v. Singh, 291 F.3d 756, 763 (11th

Cir. 2002) (internal quotation marks omitted). While it is preferable for a district

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court to identify the material facts it relies upon in finding that a defendant

testified falsely, we have held that, “in the context of the record . . . , detailed

findings were not necessary and would have been redundant.” United States v.

Smith, 231 F.3d 800, 820 (11th Cir. 2000) (internal quotation marks omitted)

(alteration in original). Rather, a general finding that encompasses all factual

predicates of perjury can be sufficient, such as an indication that the district

court’s finding relied on the evidence presented at trial and that it expressly

adopted a Presentence Investigation Report (“PSI”) that specifically detailed the

defendant’s actions that warranted the obstruction enhancement. Id. Moreover,

we have indicated that when a defendant does not request more specific findings

of fact by the district court, it is “too late” to complain to this Court. Id. (citation

omitted).

      The district court did not clearly err in finding that the enhancement for

obstruction of justice was warranted by Anderson’s perjury at trial. Through the

district court’s finding at sentencing that there was “no question” that Anderson

denied his participation in the offense to the jury and the district court’s explicit

adoption of the PSI, the district court made general findings that encompassed all

factual predicates of perjury and which, in the context of the record, can satisfy the

requirement that it make factual findings of perjury. See id. Although Anderson

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argues on appeal that the district court failed to make specific factual findings, it is

“too late” to complain because he did not raise this objection before the district

court or request more specific findings of fact. See id.

                                          IV.

      Fourth, Anderson argues that the district court erred in applying an 8-level

enhancement to the offense level for an offense involving a minor under age 12.

      We review the district court’s application of the Sentencing Guidelines de

novo. McGuinness, 451 F.3d at 1304. Pursuant to U.S.S.G. § 2G1.3(b)(5), an

offender convicted under § 2422(b) for an offense involving a minor who had not

obtained the age of 12 years receives an 8-level increase to his or her offense level.

U.S.S.G. § 2G1.3(b)(5). The application note for this Guideline provision defines

“minor” to include “an individual, whether fictitious or not, who a law

enforcement officer represented to a participant (i) had not yet attained the age of

18 years, and (ii) could be provided for the purposes of engaging in sexually

explicit conduct.” U.S.S.G. § 2G1.3(b)(5), comment. (n.1). Addressing a

sentencing-factor-manipulation claim in the context of a defendant appealing the

application of U.S.S.G. § 2G2.1(b)(1), a similar enhancement under the Guideline

for production of child pornography, when the “victim” was an undercover agent

posing as a 15-year-old girl, we rejected the defendant’s argument that the district

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court erred in applying the enhancement because law enforcement had selected the

victim’s age. United States v. Bohannon, 476 F.3d 1246, 1252 (11th Cir. 2007).

We held that the district court correctly applied the enhancement based on the

fictitious victim’s age, noting that the government’s conduct in choosing the

victim’s age was “no more manipulative than in any other sting operation.” Id.

      At trial, Anderson testified that he knew, prior to his arrest, that the children

involved were 11 and 14 years old, and he also told the undercover agent that he

knew sexual contact with them would be “illegal.” There is no evidence that the

undercover agent ever changed his representation of the children’s ages to

Anderson during their numerous communications. The Sentencing Guidelines

provide for the application of the age-based enhancement even when the offense

involves fictitious children represented as real by government officials, and the

district court properly applied the 8-level enhancement pursuant to § 2G1.3(b)(5)

based on the ages of the fictitious victims.

                                          V.

      Fifth, Anderson argues that the district court violated his constitutional

rights by considering his HIV-positive status as a sentencing factor.

      Generally we review de novo the legality of a sentence under the Eighth




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Amendment. United States v. Moriarty, 429 F.3d 1012, 1023 (11th Cir. 2005).

However, when a defendant raises an Eighth Amendment argument for the first

time on appeal, we review only for plain error. United States v. Raad, 406

F.3d 1322, 1323 (11th Cir. 2005). The Eighth Amendment provides that

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishment inflicted.” U.S. Const. amend. VIII. The Eighth Amendment

encompasses a narrow proportionality principle that applies to non-capital cases.

United States v. Brant, 62 F.3d 367, 368 (11th Cir. 1995). To determine whether

an Eighth Amendment violation has occurred, we first must make “a threshold

determination that the sentence imposed is grossly disproportionate to the

offense.” Id. The defendant bears the burden of making this threshold showing of

gross disproportionality. United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir.

2006). Only after we determine that the sentence is grossly disproportionate must

we consider the sentences imposed on other criminals in the same jurisdiction and

the sentences imposed for the same crime in other jurisdictions. Id. “In general, a

sentence within the limits imposed by statute is neither excessive nor cruel and

unusual under the Eighth Amendment.” Moriarty, 429 F.3d at 1024 (quotation

omitted).




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      First, Anderson has abandoned his claim that the district court violated his

equal protection rights by considering his HIV-positive status because he only

mentions equal protection in passing and fails to offer any argument in support of

this claim. Second, even assuming that Anderson properly presented his appeal on

Eighth Amendment grounds, his arguments fail as he makes no showing that his

sentence was grossly disproportionate to his offense, and, thus, fails to meet the

threshold requirement for mounting an appeal on Eighth Amendment grounds.

                                        VII.

      Finally, Anderson argues that his 324-month sentence was substantively

unreasonable.

      We review a sentence imposed by the district court for reasonableness and

evaluate the substantive reasonableness of a sentence under the deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S. Ct.

586, 594, 169 L. Ed. 2d 445 (2007). When reviewing a sentence, we must first

determine that the “district court committed no significant procedural error.” Id. at

51, 128 S.Ct. at 597. A reviewing court must consider several factors to determine

if a sentence is procedurally unreasonable, including whether the district court

improperly calculated the Guidelines range, treated the Guidelines range as

mandatory, failed to consider the § 3553(a) sentencing factors, selected a sentence

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based on clearly erroneous facts, or failed to adequately explain the chosen

sentence. Id.

      If the district court’s decision is procedurally reasonable, our analysis then

turns to the substantive reasonableness of the sentence. Id. Although we do not

apply a presumption of reasonableness for sentences falling within the Guidelines

range, “ordinarily we would expect a sentence within the Guidelines range to be

reasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      We review the totality of the facts and circumstances to gauge for

substantive error. United States v. Irey, 612 F.3d 1160, 1189-90 (11th Cir. 2010)

(en banc). The party challenging the sentence has the burden to establish that the

sentence is unreasonable. Talley, 431 F.3d at 788. The relevant inquiry is

“whether the sentence imposed by the district court fails to achieve the purposes of

sentencing as stated in section 3553(a).” Id. The § 3553(a) factors include:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need to reflect the seriousness
      of the offense, to promote respect for the law, and to provide just
      punishment for the offense; (3) the need for deterrence; (4) the need
      to protect the public; (5) the need to provide the defendant with
      needed educational or vocational training or medical care; (6) the
      kinds of sentences available; (7) the Sentencing Guidelines range;
      (8) pertinent policy statements of the Sentencing Commission; (9) the
      need to avoid unwanted sentencing disparities; and (10) the need to
      provide restitution to victims.



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Id. at 786 (summarizing 18 U.S.C. § 3553(a)). A district court is not required “to

state on the record that it has explicitly considered each of the § 3553(a) factors or

to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324,

1329 (11th Cir. 2005). An acknowledgment that the court considered the

defendant’s arguments and the § 3553(a) factors is adequate. See Talley, 431 F.3d

at 786. We may vacate a sentence only “if we are left with the definite and firm

conviction that the district court committed a clear error of judgment in weighing

the § 3553(a) factors by arriving at a sentence that lies outside the range of

reasonable sentences dictated by the facts of the case.” United States v. Pugh, 515

F.3d 1179, 1191 (11th Cir. 2008) (quotation omitted).

      We have held that the HIV-positive status of a child sex offender whose

conduct exposed his minor victims to a risk of HIV infection was relevant to his

offense conduct, even if the risk of infection was minimal, and that the district

court properly considered the sex offender’s HIV-positive status in imposing a

sentence. See United States v. Lebowitz, 676 F.3d 1000, 1016 (11th Cir. 2012). In

Irey, we vacated a defendant’s 210-month downward variance sentence and

remanded with instructions for the district court to impose a 360-month sentence

equal to the Guidelines range for a defendant found guilty of sexually exploiting at

least fifty children for the purpose of producing child pornography. 612 F.3d

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at 1224-25. In United States v. Dean, we affirmed the reasonableness of a 30-year

statutory maximum sentence for an offender convicted of sexually abusing his

stepdaughter for more than fifteen years and filming the abuse to produce

pornographic films. 635 F.3d 1200, 1212 (11th Cir. 2011). In United States v.

Kapordelis, we affirmed the reasonableness of a 420-month upward variance

sentence for producing, receiving, and possessing child pornography. 569

F.3d 1291, 1298, 1319 (11th Cir. 2009).

      The district court properly applied the enhancements to Anderson’s offense

level based on his use of a computer, his obstruction of justice, the age of a minor

child, and his conduct towards multiple victims, and, accordingly, did not commit

procedural error. Further, the sentence was substantively reasonable because the

district court considered and weighed the appropriate sentencing factors, and

Anderson has not met his burden in showing that the sentence was unreasonable.

The court properly considered, as part of his offense conduct, that Anderson never

revealed that he was HIV-positive and the danger of clandestine exposure to minor

victims of HIV infection. See Lebowitz, 676 F.3d at 1016. The court also

considered Anderson’s background, the need to protect the public from such

crimes, and the fact that Anderson could have stopped this conduct at any point

prior to driving to the location to meet with who he thought to be an 11 year old

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and a 14 year old. After considering all of these factors, the district court imposed

a sentence at the low-end of the Guideline range.

       Anderson also argues that his sentence creates unwarranted sentencing

disparities. However, Anderson only presents three cases on appeal, each of

which involved longer sentences imposed on offenders convicted of different

offenses. See generally Irey, 612 F.3d at 1160; Dean, 635 F.3d at 1200;

Kapordelis, 569 F.3d at 1291.

       Anderson has not met his burden of demonstrating that the sentence is

procedurally or substantively unreasonable.

                                             VIII.

       For the foregoing reasons, we affirm.2

       AFFIRMED.




       2
               Anderson has abandoned the issue of whether the district court incorrectly applied
grouping rules, pursuant to U.S.S.G. § 3D1.1, because he fails to make any argument in support
of his appeal on this basis. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.
1998).

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