     Case: 11-10584     Document: 00511989780         Page: 1     Date Filed: 09/17/2012




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

                                                                            FILED
                                                                        September 17, 2012

                                       No. 11-10584                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

HUSSAIN KAMAL,

                                                  Defendant-Appellant



                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:10-CR-159-1


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Hussain Kamal was convicted by a jury of enticement of a minor and
travel with intent to engage in a sexual act with a minor in violation of 18 U.S.C.
§§ 2422 and 2423. Kamal was sentenced to two concurrent 235-month terms of
imprisonment and to supervised release for life. On appeal, Kamal challenges
the district court’s finding that a cross-reference applied to his conduct, which
resulted in a higher Guidelines range. We AFFIRM.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10584    Document: 00511989780      Page: 2   Date Filed: 09/17/2012



                                  No. 11-10584

                                     FACTS
      In May 2008, Kamal began an online relationship with an adult volunteer
posing as a 14-year-old female using the online moniker “emotastic93.”
Throughout May and June of 2008, Kamal and emotastic93 chatted regularly by
instant message. The conversations became sexually explicit and culminated
with Kamal traveling to Greenville, Texas to meet with emotastic93. The adult
volunteer notified local law enforcement of the meeting. When Kamal arrived
at the agreed meeting location, he was arrested by local law enforcement. In
Kamal’s car, law enforcement officials found a teddy bear, condoms, Viagra, a
digital camera, and a computer and separate hard drives. In a post-arrest
statement, Kamal admitted that he thought he would be meeting a 14-year-old
girl, that he did not plan to have sexual intercourse with her but would have if
she had wanted, that he had discussed taking nude photographs of her and
himself, and that they had discussed having sexual intercourse. Kamal was
charged in the United States District Court for the Northern District of Texas
with enticement of a minor and travel with the intent to engage in a sexual act
with a minor. After a trial, the jury found Kamal guilty on both counts.
      At sentencing, the Pre-sentence Investigation Report (PSR) assigned
Kamal a base offense level of 32 pursuant to a cross-reference in Section 2G1.3,
which directs the court to apply a different section of the Sentencing Guidelines
when “the offense involved causing . . . a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of such conduct.” In his
objections to the PSR, Kamal argued that the facts did not support the
application of the cross-reference in Section 2G1.3(c)(1) so the base offense level
should be 28 as determined under Section 2G1.3 of the Guidelines.
      The probation officer asserted it was reasonable to conclude that Kamal
intended to photograph emotastic93 engaging in sexually explicit conduct. The
probation officer supported this statement with excerpts from Kamal’s instant

                                        2
   Case: 11-10584    Document: 00511989780      Page: 3    Date Filed: 09/17/2012



                                  No. 11-10584

messages with emotastic93. At the sentencing hearing, Kamal again argued
that the cross-reference did not apply. The district court disagreed. The court
found that the evidence supported the application of the cross-reference and
sentenced Kamal to two concurrent within-Guidelines sentences of 235-months
imprisonment.
                                  DISCUSSION
      On appeal, Kamal challenges the district court’s finding that the cross-
reference in Section 2G1.3(c)(1) applies to his conduct. We review the district
court’s “interpretation and application of the Guidelines, including any cross-
reference provisions, de novo.” United States v. Arturo Garcia, 590 F.3d 308, 312
(5th Cir. 2009). The district court’s factual findings are reviewed for clear error.
Id. When the findings are plausible in light of the record as a whole, there is no
clear error. See United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011).
The government must prove the facts underlying a cross-reference only by a
preponderance of the evidence. United States v. Paul, 274 F.3d 155, 164 (5th
Cir. 2001). The district court may draw “common-sense inferences from the
circumstantial evidence” presented in determining whether the cross-reference
applies. United States v. Caldwell, 448 F.3d 287, 292 (5th Cir. 2006).
      Section 2G1.3 applies to convictions under 18 U.S.C. §§ 2422 and 2423.
Subsection (c)(1) directs the court to determine a defendant’s offense level under
Section 2G2.1, the guideline for sexually exploiting a minor by production of
sexually explicit visual or printed material, when certain facts are shown.
U.S.S.G. § 2G1.3(c)(1). Courts should apply Section 2G2.1 if it would result in
a greater offense level than that applicable under Section 2G1.3 and “the offense
involved causing, transporting, permitting, or offering or seeking by notice or
advertisement, a minor to engage in sexually explicit conduct for the purpose of
producing a visual depiction of such conduct.” Id.
      The commentary to Section 2G1.3 states:

                                         3
   Case: 11-10584    Document: 00511989780       Page: 4   Date Filed: 09/17/2012



                                   No. 11-10584

      [S]ubsection (c)(1) is to be construed broadly and includes all
      instances in which the offense involved employing, using,
      persuading, inducing, enticing, coercing, transporting, permitting,
      or offering or seeking by notice, advertisement or other method, a
      minor to engage in sexually explicit conduct for the purpose of
      producing any visual depiction of such conduct.

U.S.S.G. § 2G1.3 cmt. n.5(A).
      The commentary directs the court to 18 U.S.C. § 2256(2) for the definition
of “sexually explicit conduct.” Id. Section 2256(2) defines sexually explicit
conduct as “(i) sexual intercourse . . . ; (ii) bestiality; (iii) masturbation; (iv)
sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic
area of any person.” 18 U.S.C. § 2256(2). If the district court’s finding that
Kamal intended to photograph emotastic93 engaging in sexually explicit conduct
as defined in Section 2256(2) is plausible in light of the record as a whole, we will
affirm the district court’s application of the cross-reference.
      Kamal argues that the evidence presented was insufficient to support the
district court’s finding.   Kamal acknowledges there was evidence that he
intended to take photographs of emotastic93 in her underwear and naked, and
there was evidence that he intended to take pictures of them together using the
automatic function on his digital camera. But, Kamal argues this evidence does
not demonstrate that he intended to take photographs of emotastic93 engaging
in sexually explicit conduct as defined in Section 2256(2).
      Kamal suggests that the PSR expanded the applicability of the cross-
reference by finding that he intended to photograph emotastic93 engaged in
sexually explicit conduct based solely on (1) evidence that he wanted to obtain
photographs of emotastic93 not engaged in sexually explicit conduct and (2)
evidence of his desire to engage in sexually explicit conduct with emotastic93 –
without any admission he wanted to take photos of such conduct. Further,
Kamal contends that when actual photographs do not exist, the defendant must


                                         4
   Case: 11-10584     Document: 00511989780        Page: 5     Date Filed: 09/17/2012



                                     No. 11-10584

specifically discuss photographing sexually explicit conduct in order for the
cross-reference to apply. We disagree.
      The district court acknowledged that Kamal did not specifically discuss
taking photographs of emotastic93 engaging in sexually explicit conduct. Even
so, “common sense teaches that if you think you’re talking to a 14-year-old you’re
not going to be as explicit. You’re going to reel her in, like a piece of bait, . . . and
he is pushing and probing and seeing where he can go, so he’s not going to be as
explicit.” The district court also cited evidence that Kamal discussed “setting up
his camera to take automatic pictures, which doesn’t make much sense unless
you are hoping or intending to use that to take pictures where you don’t have a
photographer and you’re going to be in the picture with the person.”
      The Eleventh Circuit affirmed the application of the cross-reference when
the defendant did not explicitly discuss photographing the minor engaging in
sexually explicit conduct. See United States v. Bohannon, 476 F.3d 1246, 1248
(11th Cir. 2007). In that case, the defendant had a history of photographing his
sexual encounters and arrived to meet the victim with a digital camera,
condoms, and erectile-dysfunction medication.            Id.   The court noted that
although the presence of a camera alone would be insufficient, when combined
with the defendant’s “propensity to take pictures of his sexual encounters,” the
district court did not err in finding the cross-reference applied. Id. at 1252.
      Similarly, the evidence here extends beyond the mere presence of a
camera. There was evidence that Kamal arrived to meet emotastic93 with a
digital camera, Viagra, and condoms; that he had nude pictures saved as “sexy
teen” on his computer; that he had pictures of himself engaged in sexually
explicit conduct on his computer; that he intended to engage in sexually explicit
conduct with emotastic93; that he wanted to take pictures of them kissing; that
he wanted to take pictures of emotastic93 posing in her underwear and naked;
that he wanted to photograph himself with emotastic93 using a camera that

                                           5
  Case: 11-10584    Document: 00511989780     Page: 6   Date Filed: 09/17/2012



                                 No. 11-10584

enabled him to take pictures automatically; and that the photographs would not
include their faces so that they could not be identified. The evidence here was
sufficient for the district court to find it was more likely than not that Kamal
intended to photograph emotastic93 engaging in sexually explicit conduct.
      We AFFIRM.




                                       6
