           Case: 20-10050   Date Filed: 06/30/2020   Page: 1 of 8



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 20-10050
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:12-cr-00025-MW-CJK-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

BRENNON KYLE HOLLEY,

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 30, 2020)

Before ROSENBAUM, JILL PRYOR, and NEWSOM, Circuit Judges.

PER CURIAM:
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      After a jury trial, Brennon Holley was convicted of attempting to persuade,

induce, entice, or coerce a minor to engage in unlawful sexual activity, in violation

of 18 U.S.C. § 2422(b). The trial evidence showed that Holley, after engaging in

sexually explicit conversations over the Internet with a member of law enforcement

posing as a 13-year-old girl named “Rhea,” arranged and traveled to meet the

fictitious minor for the purpose of engaging in sexual activity. On appeal, Holley

challenges the district court’s jury instructions regarding the definitions of

“substantial step” and “induce.” After careful review, we affirm.

                                         I.

      We begin with the district court’s definition of “substantial step.” Holley was

convicted of an attempt offense under 18 U.S.C. § 2422(b), which provides as

follows:

      Whoever, using the mail or 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
      prostitution or any sexual activity for which any person can be charged
      with a criminal offense, or attempts to do so, shall be fined under this
      title and imprisoned not less than 10 years or for life.

      “To prove that a defendant violated § 2422(b) by attempting to induce a minor

to engage in sexual activity, the government must show that the defendant (1) had

the specific intent to induce a minor to engage in sexual activity, and (2) took a

substantial step toward the commission of that offense.” United States v. Gillis, 938

F.3d 1181, 1190 (11th Cir. 2019). As to the substantial-step prong, the government
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must demonstrate that “the defendant took a substantial step toward causing assent,

not toward causing actual sexual contact.” United States v. Lee, 603 F.3d 904, 914

(11th Cir. 2010) (“The statute criminalizes an intentional attempt to achieve a mental

state—a minor’s assent.” (quotation marks omitted)).

         In preparation for trial, the parties submitted proposed jury instructions.

Holley requested, in relevant part, the following instruction regarding “substantial

step”:

         It is not necessary for the Government to prove that the individual was
         actually persuaded, induced, enticed, or coerced to engage in sexual
         activity; but it is necessary for the Government to prove that the
         Defendant intended to engage in some form of unlawful sexual activity
         with the individual and knowingly took some action that was a
         substantial step toward bringing about or engaging in that sexual
         activity.

         A “substantial step” is an important action leading up to committing an
         offense—not just an inconsequential act. It must be more than simply
         preparing. It must be an act that would normally result in committing
         the offense. Thus, a substantial step to persuade, induce, entice, or
         coerce a minor must be confined to the interstate communications
         between the defendant and the individual. Travel or other
         activities not related to communications utilizing facilities of
         interstate commerce cannot be a substantial step.

The district court gave the jury the non-bolded portion of Holley’s requested

instruction, with one minor and irrelevant variation in phrasing, but omitted the

bolded portion.

         On appeal, Holley challenges the district court’s “substantial step” instruction

on two grounds. First, he contends that, by instructing the jury that the substantial
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step must have been “toward bringing about or engaging in that [unlawful] sexual

activity” (the italicized portion of the instruction above), the court misled the jury

into believing that “traveling to meet the fictitious minor can constitute a substantial

step toward an attempted violation of § 2422(b).” In Holley’s view, travel is not a

substantial step under § 2422(b) because the substantive crime is “the persuasion,

inducement, enticement, or coercion of the minor rather than the sex act itself,”

United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004), and travel is not a

substantial step toward causing assent.

      Second, relying on these same arguments, Holley contends that the district

court abused its discretion by refusing to give the bolded portion of his requested

instruction. He asserts that the court’s refusal to give his requested instruction

prejudiced his defense and permitted the jury to return a “conviction for conduct

falling outside the ambit of the statute.” We address each argument in turn.

                                          A.

      We ordinarily review de novo the legal correctness of a jury instruction,

though we defer to the district court’s choice of phrasing. United States v. Isnadin,

742 F.3d 1278, 1296 (11th Cir. 2014). To reverse a conviction based on a challenge

to a jury instruction, we must be “left with a substantial and ineradicable doubt as to

whether the jury was properly guided in its deliberations.” United States v. Gibson,

708 F.3d 1256, 1275 (11th Cir. 2013) (quotation marks omitted).


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      But appellate review is not available, even for plain error, “when a party

induces or invites the district court into making an error.” United States v. Stone,

139 F.3d 822, 838 (11th Cir. 1998). A defendant can invite error in jury instructions

“by submitting an incorrect jury instruction to the district judge which is then given

to the jury.” Id.; see United States v. Frank, 599 F.3d 1221, 1240 (11th Cir. 2010)

(“Frank invited error when he not only agreed with the supplemental instructions

and special verdict form, but requested them.”).

      Here, Holley invited any error with regard to the district court’s instruction to

the jury that “it is necessary for the [g]overnment to prove that the Defendant

intended to engage in some form of unlawful sexual activity with the individual and

knowingly took some action that was a substantial step toward bringing about or

engaging in that sexual activity.” Holley claims that the instruction was given “over

objection,” but he fails to identify where in the record he objected to this specific

instruction, and our own review of the record confirms that this language was

included in his proposed jury instructions. See Doc. 164 at 2. Because Holley

submitted this instruction, he invited any error and cannot now complain that the

district court erred in giving it to the jury. See Stone, 139 F.3d at 838.

                                          B.

      We review the refusal to give a requested jury instruction for an abuse of

discretion. United States v. Rutgerson, 822 F.3d 1223, 1236 (11th Cir. 2016). “A


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refusal to incorporate a requested instruction will be reversed only if (1) the

requested instruction was substantively correct, (2) the court’s charge to the jury did

not cover the gist of the instruction, and (3) the failure to give the instruction

substantially impaired the defendant’s ability to present an effective defense.” Id.

(quotation marks omitted).

       As stated above, in a prosecution for attempt under § 2422(b), the government

must prove that “the defendant took a substantial step toward causing assent.” Lee,

603 F.3d at 914; see Gillis, 938 F.3d at 1190. We consider the totality of the

defendant’s conduct when determining whether he took a substantial step toward a

violation of § 2422(b). Lee, 603 F.3d at 916. A substantial step occurs when “the

defendant’s objective acts mark his conduct as criminal such that his acts as a whole

strongly corroborate the required culpability.” Murrell, 368 F.3d at 1288.

       Here, the district court properly rejected Holley’s requested instruction, which

excluded “[t]ravel or other activities not related to communications utilizing

facilities of interstate commerce” from the substantial-step analysis, because it was

not substantively correct.1 Holley maintains that travel is not a substantial step under

§ 2422(b) because it has nothing to do with inducing a minor to engage in illegal sex

through facilities of interstate commerce, which, in his view, is all that the statute


       1
         Despite admitting to the district court that the requested instruction “doesn’t square with
the Eleventh Circuit,” Holley now argues, through different counsel, that it is not inconsistent with
the law in this Circuit or the plain language of the statute.
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criminalizes. But this Court frequently has relied on evidence of travel in concluding

that the totality of the defendant’s conduct constituted a substantial step toward

inducing a minor to engage in unlawful sexual activity. 2 See, e.g., Gillis, 938 F.3d

at 1188, 1190 (defendant’s hour-long drive to meet a fictitious minor was evidence

of a substantial step); United States v. Farley, 607 F.3d 1294, 1334 (11th Cir. 2010)

(defendant’s flight to Atlanta to meet a purported mother and child was evidence of

a substantial step); United States v. Yost, 479 F.3d 815, 820 (11th Cir. 2007)

(defendant’s travel to meet a fictitious minor at a mall was evidence of a substantial

step); Murrell, 368 F.3d at 1288 (defendant’s two-hour journey to meet a fictitious

minor for sex was evidence of a substantial step); United States v. Root, 296 F.3d

1222, 1228 (11th Cir. 2002) (defendant’s five-hour drive across state lines to meet a

fictitious minor was evidence of a substantial step). We have reasoned that travel—

even intrastate travel—is evidence of a substantial step because it corroborates a

defendant’s culpability and demonstrates that his conduct was criminal. See Yost,

479 F.3d at 820; Murrell, 368 F.3d at 1288.

       Accordingly, Holley’s requested instruction—attempting to exclude travel,

among other actions, from the substantial-step analysis—is not a substantively



       2
         We reject Holley’s suggestion that our reliance on travel as evidence of a substantial step
is merely dicta. We see nothing to indicate that the prior panels considered travel superfluous to
the holdings in those cases. See United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019)
(“[D]icta is a statement that neither constitutes the holding of a case, nor arises from a part of the
opinion that is necessary to the holding of the case.” (quotation marks omitted)).
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correct statement of law in this Circuit. The district court therefore did not abuse its

discretion by refusing to give it. See Rutgerson, 822 F.3d at 1236.

                                          II.

      Finally, Holley argues that the district court erred in instructing the jury that

the word “induce,” as used in § 2422(b), means “to stimulate the occurrence of or to

cause.” However, we previously adopted this same definition—“to stimulate the

occurrence of; cause”—in Murrell, rejecting an alternative definition—“to lead or

move by influence or persuasion; to prevail upon”—because it was “essentially

synonymous with the word ‘persuade.’” 368 F.3d at 1287.

      Holley suggests Murrell was wrongly decided, but we are bound by that

decision, which has not been overruled by this Court en banc or by the Supreme

Court, under the prior-precedent rule. See United States v. Vega-Castillo, 540 F.3d

1235, 1236 (11th Cir. 2008). Accordingly, the district court properly instructed the

jury, consistent with Murrell, that “induce” means “to stimulate the occurrence of or

to cause.”

      For these reasons, we affirm Holley’s conviction.

      AFFIRMED.




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