                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4891


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JUAN BRANDON GRAY-SOMMERVILLE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Robert J. Conrad,
Jr., District Judge. (3:13-cr-00107-RJC-1)


Submitted:   June 12, 2015                 Decided:   July 15, 2015


Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant. Jill
Westmoreland Rose, Acting United States Attorney, Asheville,
North Carolina, Anthony J. Enright, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Juan   Brandon      Gray-Sommerville       (Gray-Sommerville)         appeals

his   conviction     following    a    jury    trial    on    one   count    of    sex

trafficking a minor child in violation of 18 U.S.C. § 1591(a).

The   district   court     sentenced    Gray-Sommerville         to   225   months’

imprisonment.       On appeal, Gray-Sommerville seeks vacature of his

criminal judgment on numerous grounds.                   Finding no error, we

affirm.



                                        I.

      Gray-Sommerville      first     challenges       the   sufficiency     of    the

evidence to support his conviction on the single count of sex

trafficking a minor child in violation of 18 U.S.C. § 1591(a).

Because Gray-Sommerville failed to renew his Federal Rule of

Criminal Procedure 29 motion for judgment of acquittal after he

introduced evidence in his own defense and because the district

court did not reserve ruling on such motion at the close of the

government’s case-in-chief, we review only for plain error.                       See

United States v. Whal, 290 F.3d 370, 373-75 (D.C. Cir. 2002)

(failure to renew motion for judgment of acquittal at close of

all evidence did not waive sufficiency of evidence challenge

where district court reserved decision on motion for judgment of

acquittal    made    at   close   of    government’s         case-in-chief    until

after case submitted to jury); United States v. Villasenor, 236

                                       - 2 -
F.3d 220, 222 (5th Cir. 2000) (“[The defendant] moved for a

judgment of acquittal at the close of the government’s case, but

he did not renew the motion at the close of the evidence.                                As a

result, his claims based on the sufficiency of the evidence are

reviewable for plain error only.”).                    See also Fed. R. Crim. P.

52(b) (“A plain error that affects substantial rights may be

considered      even    though       it   was    not    brought      to     the     court’s

attention.”).       To establish plain error, Gray-Sommerville must

initially    establish:        (1)    there     was    error;      (2)    the    error    was

plain;    and     (3)   the    error        affected    his     substantial         rights.

United States v. Olano, 507 U.S. 725, 732 (1993).                                Even if he

establishes each of these three prongs of plain error review,

before we may exercise our discretion to correct the error, we

must    be   convinced      that      the    error     “seriously         affect[s]       the

fairness,       integrity        or       public       reputation          of      judicial

proceedings.”            Id.       (internal          quotation          marks     omitted)

(alteration in original).

       Gray-Sommerville cannot even get past the first prong of

plain error review——i.e. establishing error.                             With respect to

the    elements    of   a     § 1591(a)(1)       offense      as    alleged       in     Gray-

Sommerville’s indictment, the district court instructed the jury

as follows:

            For you to find the defendant guilty of                               this
       crime you must find beyond a reasonable doubt:


                                            - 3 -
            One, that the defendant knowingly recruited,
       enticed, harbored, transported, provided, obtained or
       maintained by any means the person named in the
       indictment, that is I.P.

            Two, that the defendant did so knowing or in
       reckless disregard of the fact that the person had not
       attained the age of 18 years and would be caused to
       engage in a commercial sex act.

            And three, that the defendant’s act was in or
       affected interstate or foreign commerce.

(J.A. 568-69).        Notably, Gray-Sommerville does not challenge on

appeal the correctness of this jury instruction regarding the

elements of his charged § 1591(a)(1) offense.

       The district court did not err in failing to sua sponte

grant Gray-Sommerville judgment of acquittal at the close of all

evidence in his trial “if, viewing the evidence in the light

most favorable to the prosecution, the verdict is supported by

substantial evidence.”         United States v. Smith, 451 F.3d 209,

216    (4th    Cir.    2006)    (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).            Moreover, “[t]he jury,

not the reviewing court, weighs the credibility of the evidence

and resolves any conflicts in the evidence presented.”               United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal

quotation marks omitted) (alteration in original).



                                    - 4 -
        Gray-Sommerville         acknowledges         his   participation        in    the

recruitment, transportation, harboring, maintaining, obtaining,

and enticement of I.P. to engage in a commercial sex act, but

challenges as insufficient the evidence to support the jury’s

finding that:         (1) he knew or acted in reckless disregard of the

fact that I.P. was less than eighteen years old; or (2) his

conduct      was    in   or    affecting       commerce.        We    have    thoroughly

reviewed the record and conclude substantial evidence supports

the jury’s findings on both of these elements.                         With respect to

whether Gray-Sommerville knew or acted in reckless disregard of

the fact that I.P. was less than eighteen years old, the jury

heard       the     testimony         of     Gray-Sommerville’s         then     current

girlfriend, Araminta Brace (Brace).                     Brace testified that she

and   Gray-Sommerville          met    I.P.     for   the   first      time    when    they

picked her up from her high school in Morganton, North Carolina

in a vehicle driven by Gray-Sommerville.                    Brace, who was sitting

in    the    passenger    seat,       asked     I.P.,     who   was    sitting   in     the

backseat behind Gray-Sommerville, “‘Sweetie, how old are you?’”

(J.A. 353).          I.P. responded:            “‘If I tell you he won’t want

me.’”       Id.    “[Brace then] said, ‘Sweetie, it doesn’t matter what

he wants.          I just need to know how old you are.’”                      Id.     I.P.

responded, “‘Okay.            I’m 16.’”        Id.    Gray-Sommerville then said:

“‘Damn, she’s 16.             Should we turn around?’”               (J.A. 354).       When

Brace       responded    in     the        affirmative,     Gray-Sommerville          said:

                                             - 5 -
“‘Nah, that’s a waste of my gas.’”                      Id.    And so Gray-Sommerville

just kept traveling by vehicle toward Charlotte, North Carolina.

This    testimony       by    Brace      is    alone     sufficient      to    support    the

jury’s finding that Gray-Sommerville knew or acted in reckless

disregard of the fact that I.P. was less than eighteen years

old.     See United States v. Baker, 985 F.2d 1248, 1255 (4th Cir.

1993)    (“The       law     is   well    settled       in    this     circuit    that    the

uncorroborated testimony of an accomplice may be sufficient to

sustain a conviction.”).                 Nonetheless, the jury also heard the

testimony        of          Detective           Michael         Sardelis         of      the

Charlotte-Mecklenburg             Police       Department       that    Gray-Sommerville

confessed to him that he knew I.P. was under the age of eighteen

when he arrived in Charlotte and took her to a hotel room prior

to prostituting her.               In sum, sufficient evidence supports the

first     element      challenged         by     Gray-Sommerville.             Next,      with

respect    to    the       interstate     commerce       element,       the    government’s

evidence that Gray-Sommerville advertised I.P. on the Internet

website www.Backpage.com is sufficient to satisfy this element.

United    States      v.     Barlow,     568     F.3d    215,    220    (5th     Cir.    2009)

(“[I]t    is     beyond       debate      that     the       Internet    and     email    are

facilities      or     means      of   interstate        commerce.”).          Accordingly,

Gray-Sommerville is not eligible for appellate relief from his

conviction for the sex trafficking of a minor child in violation

of 18 U.S.C. § 1591(a) on plain error review.

                                              - 6 -
                                               II.

        Gray-Sommerville         next        challenges    his   conviction      on     the

basis that his due process rights under the Fifth Amendment to

the United States Constitution and his right to confront all

witnesses       against    him     under       the    Confrontation     Clause    of    the

Sixth Amendment to the United States Constitution were violated

by   the    combination      of       the     government’s     announcement      that    it

would      call   I.P.     to     testify       during     its   case-in-chief,         his

reasonable        reliance        on     such        announcement,      and   then      the

government’s       failure       to     do    so.      Relatedly,     Gray-Sommerville

further contends, relying on Crawford v. Washington, 541 U.S. 36

(2004), that the government’s failure to call I.P. to testify

during its case-in-chief violated his Sixth Amendment right to

confront all witnesses against him.                        Because Gray-Sommerville

failed to raise these arguments below, we review for plain error

under Olano, 507 U.S. at 732.

        With respect to the government’s failure to call I.P. to

testify during its case-in-chief after allegedly announcing its

intention to do so, Gray-Sommerville cannot get past the first

prong      of   plain     error       review——i.e.        he   cannot    establish      the

district court erred.             Id.        Critically, the record flatly belies

Gray-Sommerville’s contention that the government announced to

him and the district court that it would call I.P. to testify

during its case-in-chief.                   Indeed, the record is clear that on

                                              - 7 -
the morning of the start of trial, the government represented to

Gray-Sommerville and the district court outside the presence of

the jury that the government “may or may not call the victim.”

(J.A. 179).      The record is not in conflict on this point.

       Moreover, Gray-Sommerville cannot establish the first prong

of plain error review with respect to his contention, relying on

Crawford, 541 U.S. at 36, that the government’s failure to call

I.P.   to    testify    during    its      case-in-chief         violated   his       Sixth

Amendment      right      to    confront      all     witnesses         against        him.

Gray-Sommerville did not suffer a Crawford error as he contends.

In Crawford, the Supreme Court made clear the Sixth Amendment’s

Confrontation Clause prohibits the introduction of out-of-court

testimonial     evidence       used   for    establishing         the   truth     of    the

matter      asserted    unless    the      witness    is    unavailable         and    the

defendant has had a prior opportunity for cross-examination of

such witness.       Id. at 59 n.9, 68.              Fatal to Gray-Sommerville’s

contention     is   his   failure     to    identify       any    statement     by     I.P.

heard by the jury which was testimonial and/or was offered for

the truth of the matter asserted.                Moreover, our review of the

record      discloses     none.         Accordingly,         Gray-Sommerville           is

entitled to no appellate relief with respect to his asserted

Crawford error.




                                        - 8 -
                                                III.

      Gray-Sommerville next argues the district court abused its

discretion by admitting, over his objection, other act evidence

that he advertised and transported a prostitute, whom he learned

was a minor, just three months prior to meeting I.P.                                       According

to Gray-Sommerville, such evidence was only admitted to show he

had   bad    character,          and     thus,      must   be     guilty        of    his    charged

offense.          See Fed. R. Evid. 404(b)(1) (“Evidence 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.”).

Gray-Sommerville’s argument is without merit.                                    We review the

district         court’s    challenged          evidentiary          ruling      for       abuse   of

discretion.         United States v. Basham, 561 F.3d 302, 325-26 (4th

Cir. 2009).

      Immediately           prior        to   the      admission          of    the     challenged

evidence, which the government introduced through the testimony

of two law-enforcement officers, the district court instructed

the jury that it was “about to hear evidence presented from the

government concerning alleged acts of the defendant which may

be similar to the act charged in the indictment but which was

committed on a different occasion.”                         (J.A. 411).              The district

court    then      instructed          the    jury     that     it    could      consider      such

evidence         “only     for    the     limited       purposes”          of    “determin[ing]

                                                - 9 -
whether the defendant had the state of mind or intent necessary

to commit the crime charged in the indictment; whether he acted

according to a plan or in preparation for the commission of a

crime; and whether the defendant acted intentionally and not by

mistake or accident.”      (J.A. 412).

      Gray-Sommerville concedes that the challenged evidence was

relevant to the issue of his intent to commit the crime of child

sex   trafficking,    i.e.,    relevant          to   the    issue    of    his   mental

state, and thus satisfies the test for relevancy under Federal

Rule of Evidence 401 and qualifies as a legitimate reason for

admission     under   Federal       Rule    of        Evidence     404(b)(2).        He

nonetheless     contends       that        the        challenged      evidence       was

inadmissible because his intent was not at issue in his trial.

      Gray-Sommerville’s contention is without merit.                         The mens

rea    component      of      the     § 1591(a)             offense        charged   in

Gray-Sommerville’s indictment required the government to prove

beyond a reasonable doubt that Gray-Sommerville took the actions

alleged in the indictment with respect to I.P. knowingly or in

reckless disregard of the fact that I.P. had not attained the

age of eighteen.       As the district court instructed the jury

without objection by Gray-Sommerville, the word “‘knowingly’ as

that term . . . has been used in these instructions means that

the act was done voluntarily and intentionally, not because of

mistake or accident.”         (J.A. 569).             Because Gray-Sommerville’s

                                      - 10 -
intent    was    squarely       at    issue      in    his    trial,     the    challenged

evidence was admissible under Federal Rule of Evidence 404(b) to

prove Gray-Sommerville acted intentionally with respect to the

acts alleged in his indictment and not because of mistake or

accident.         See    Fed.    R.       Evid.       404(b)(2)      (evidence       may     be

admissible to prove, inter alia, intent, absence of mistake, or

lack of accident).

        This brings us to Gray-Sommerville’s argument that even if

the   challenged        evidence     is    relevant,         its    probative       value    is

substantially outweighed by the danger of unfair prejudice, and

therefore, excludable under Federal Rule of Evidence 403.                                   See

Fed. R. Evid. 403 (“The court may exclude relevant evidence if

its probative value is substantially outweighed by a danger of

. . . unfair      prejudice      . . . .”).             In    response    to    this       same

argument by Gray-Sommerville below, the district court held the

other    act    evidence    involving         Gray-Sommerville         advertising          and

transporting another minor for prostitution just three months

prior to the charged instant offense “is highly probative on the

issue    of     the    mental    state      of    the     defendant,”         and    is     not

substantially         outweighed      by    the   danger       of    unfair     prejudice.

(J.A. 408).       After reviewing the record, we find the challenged

evidence was no more sensational or disturbing than the charged

offense,        and      therefore,         did         not        unfairly         prejudice

Gray-Sommerville.          See United States v. Boyd, 53 F.3d 631, 637

                                           - 11 -
(4th       Cir.    1995)    (holding    Rule    403   balancing    test   undeniably

weighed       in     favor    of    admitting       challenged    evidence      because

challenged evidence did not involve conduct any more sensational

or disturbing than defendant’s charged offenses).

       In sum, the district court did not abuse its discretion in

admitting the challenged evidence.



                                              IV.

       In conclusion, we affirm the judgment below in toto. ∗                        We

dispense          with     oral    argument    because    the    facts    and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                             AFFIRMED




       ∗
       We grant Gray-Sommerville’s motion to file a pro se
supplemental brief.    We have considered the issues raised in
such brief and find them to be without merit.



                                         - 12 -
