     Case: 18-40173      Document: 00514760861         Page: 1    Date Filed: 12/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                    No. 18-40173                             FILED
                                  Summary Calendar                   December 14, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDWIN OLAND ANDRUS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:17-CR-78-1


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       A jury convicted Edwin Oland Andrus of one count of attempted coercion
and enticement of a minor, in violation of 18 U.S.C. § 2422(b). On appeal,
Andrus argues that the district court erred by denying his motion for judgment
of acquittal and by denying his motion to dismiss the indictment.
       The district court’s denial of Andrus’s motion for judgment of acquittal
is reviewed de novo. See United States v. Lewis, 774 F.3d 837, 841 (5th Cir.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 18-40173

2014). When reviewing a challenge to the sufficiency of the evidence, this court
considers “whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Imo, 739
F.3d 226, 235 (5th Cir. 2014) (internal quotation marks, citation, and emphasis
omitted). Section 2422(b) does not require that the defendant actually engage
in sexual contact, see United States v. Barlow, 568 F.3d 215, 219 n.10 (5th Cir.
2009), and a defendant can violate the statute solely through communications
with an adult where the defendant directs his inducements to a child, United
States v. Olvera, 687 F.3d 645, 647-48 (5th Cir. 2012), or communications with
an undercover agent posing as a person with access to a child, United States v.
Caudill, 709 F.3d 444, 445-46 (5th Cir. 2013).
      Andrus argues that § 2422(b) requires the Government to prove that,
had the sexual activity occurred, the defendant could be charged with the
criminal offense of aggravated sexual assault under Texas law, which in turn
requires “sexual contact or sexual penetration of a child.” See TEX. PENAL
CODE § 22.011. Andrus contends that his contemplated sexual activity would
not have violated § 22.011 because the two women in the photograph sent by
the undercover agent were not minors and were above the age of consent.
However, the true age of the women depicted in the photograph is irrelevant.
See United States v. Farner, 241 F.3d 510, 513 (5th Cir. 2001). This court
considers whether the defendant’s “scheme, if fully carried out as he ‘desired’
or ‘planned,’” would have violated the relevant state law. See id. Andrus’s
messages with the undercover agent repeatedly conveyed his sexual attraction
with young girls and his intention to have sex with the agent’s daughter, whom
he believed to be 14 years old. Therefore, if Andrus had carried out his plans
as he conceived of them, he would have violated § 22.011. See Farner, 241 F.3d
at 513. Because a rational trier of fact could have determined that Andrus



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                                 No. 18-40173

contemplated sexual conduct that would have constituted a violation of Texas
law, the district court did not err by denying Andrus’s motion for judgment of
acquittal. See Lewis, 774 F.3d at 841; Imo, 739 F.3d at 235
      We review de novo the district court’s denial of a motion to dismiss an
indictment. United States v. Arrieta, 862 F.3d 512, 514 (5th Cir. 2017). Andrus
contends that his indictment should have been dismissed because § 2422(b)
requires the defendant to make or attempt making direct contact with the
minor victim, and Andrus made no such attempt because he only
communicated with an adult intermediary. That argument is foreclosed by
Caudill.   See 709 F.3d at 446 (affirming conviction of defendant who
communicated solely with an adult intermediary and “did not seek to have any
of his communications with the adult passed on directly to a child”). Andrus
urges the court to find that Caudill was wrongly decided. The panel perceives
no error in Caudill’s reasoning, and in any event, we may not overturn a prior
panel’s decision absent an intervening change in the law or en banc
reconsideration. See, e.g., Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375,
378 (5th Cir. 2008).
      Accordingly, the judgment of the district court is AFFIRMED.




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