     Case: 17-41182       Document: 00514617748         Page: 1     Date Filed: 08/27/2018




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

                                     No. 17-41182                                   FILED
                                   Summary Calendar                           August 27, 2018
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JASON CRAIG MONTGOMERY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:17-CR-84-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       A jury convicted Jason Craig Montgomery of one count of attempted
coercion and enticement of a minor, in violation of 18 U.S.C. § 2422(b).
Montgomery contends the district court erred by denying his motion to dismiss
the indictment; denying his motions for judgment of acquittal and new trial;
and not sustaining his objection to an eight-level enhancement pursuant to




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 17-41182    Document: 00514617748      Page: 2   Date Filed: 08/27/2018


                                  No. 17-41182

Sentencing Guideline § 2G1.3(b)(5) (“offense involved a minor who had not
attained the age of 12 years”).
      Montgomery was indicted on one count of attempted coercion and
enticement of a minor, in violation of 18 U.S.C. § 2422(b). He pleaded not guilty
and, about a week prior to trial, moved, pursuant to Federal Rule of Criminal
Procedure 12(b)(2), to dismiss the indictment, claiming the “undisputed facts”
showed he did not act with the
      intent to transform or overcome the fictitious minor’s will, never
      took a substantial step corroborating his intent to engage in
      conduct designed to persuade, induce, entice or coerce a minor to
      participate in prohibited sexual activity, and never used or
      attempted to use a means of interstate commerce to communicate
      with a person purportedly under 18 to attempt to persuade, induce,
      entice or coerce that minor to participate in prohibited sexual
      activity.

The motion was denied on the grounds the indictment was sufficient on its face
and factual disputes warranted trial.
      At trial, FBI Special Agent Mullican, with the FBI’s Child Exploitation
Task Force, testified she began investigating Montgomery when she discovered
an ad Montgomery posted to the Craigslist website in March 2017, identifying
himself as a “daddy” seeking “a younger girl, 17 to 25, that’s [sic] been looking
for a fantasy with an older man”. Although the ad did not mention minors, the
Agent believed it exhibited certain “flags”, including the use of the term
“daddy” and the reference to a “younger girl”. She responded to this ad, as well
as an identical one Montgomery posted five days later.
      The Agent adopted the persona of a single mother who was interested in
“taboo”, meaning “an adult with a child with a willingness to engage in sexual
activity”, and in “M&D”, meaning sexual relations between a mother and
daughter. Montgomery asked how old her child was, and the Agent responded
her (fictitious) daughter was ten. Shortly after, Montgomery asked whether


                                        2
    Case: 17-41182    Document: 00514617748      Page: 3   Date Filed: 08/27/2018


                                 No. 17-41182

the Agent and her daughter had engaged in sexual activity together. The
Agent explained to Montgomery she was looking “to watch somebody be
engaged in sexual activity with [her] child” for purposes of her sexual
stimulation, and asked Montgomery whether he was only interested in role
play or whether he sought an encounter with a child. Montgomery stated he
had only participated in role play before because he did not have a daughter
and he had no sexual experience with children.
      Over the course of about two weeks in April 2017, Montgomery and the
Agent continued to chat using Kik messenger.          The Agent testified she
sometimes disengaged and offered Montgomery several opportunities to leave
the conversation. She also asked him how he knew he was interested in sex
with her ten-year-old if he had no experience, and Montgomery responded that
he “like[d] younger” and knew what he wanted.
      The Agent repeatedly reminded Montgomery she was not planning to
participate in any sexual activity; she was solely interested in watching
someone have sex with her daughter; and she was interested in more than just
role play. Nevertheless, Montgomery continued to chat with the Agent; stated
he found the idea of the Agent’s having sex with her daughter to be sexually
stimulating; and described how he would engage in sexual contact with the
child. Montgomery also expressed knowledge that his conduct was illegal; and
he offered the Agent advice about avoiding legal repercussions for their actions,
including drugging the child to maintain a level of secrecy.
      Montgomery and the Agent eventually made plans to meet in person
with her daughter present. They discussed the items Montgomery would bring
to their meeting, including sleeping pills and allergy medicine to drug the
daughter; a trophy Montgomery won in a motorcycle race; alcohol; flash drives
for the Agent to save pornographic images of her daughter; and condoms.



                                       3
    Case: 17-41182     Document: 00514617748     Page: 4   Date Filed: 08/27/2018


                                  No. 17-41182

      On the agreed-upon day, Montgomery arrived at the designated meeting
place, purportedly the Agent’s apartment complex, and was arrested.
Montgomery had a sleeping pill and an allergy pill in his pockets, and condoms,
beer, two flash drives, and a trophy in his vehicle at the time of his arrest.
      After the Government rested its case, Montgomery moved for judgment
of acquittal, again contending he did not act “with the intent to transform or
overcome the fictitious minor’s will”, take a substantial step corroborating his
intent, or use a means of interstate commerce to communicate with a purported
minor as required to support a conviction under 18 U.S.C. § 2422(b). The
motion was denied, and the jury found Montgomery guilty.
      Following trial, Montgomery again moved for a judgment of acquittal
and moved for a new trial. In the motions, Montgomery raised the same
grounds as those in the pre-verdict motion for judgment of acquittal.            In
addition, Montgomery asserted the Government failed to present sufficient
evidence to overcome his prima facie showing of entrapment. The court denied
both motions.
      The presentence investigation report (PSR) assigned a total offense level
of 38 and a criminal history category of I, resulting in an advisory Guidelines
sentencing range of 235 to 240 months’ imprisonment. The total offense level
included an eight-level enhancement pursuant to Guideline § 2G1.3(b)(5)
because the fictitious minor involved in the offense was said to be under 12
years of age. Montgomery objected to the enhancement, asserting it violated
his due-process rights and constituted “sentencing entrapment” or “sentence
factor manipulation”.    Along that line, he claimed the Government had
“exclusive control over facts”, including the purported minor’s age, that it could
manipulate to “ratchet up the sentence in violation of due process”.
Montgomery also moved for a downward variance based on his age, his lack of



                                        4
    Case: 17-41182    Document: 00514617748     Page: 5   Date Filed: 08/27/2018


                                 No. 17-41182

criminal history, the nonviolent nature of the offense, his education level, his
low risk of recidivism, and his not having had contact with the fictitious minor.
      At the sentencing hearing, the court acknowledged the PSR’s sentencing
range was in error, with the correct range calling for 235 to 293 months’
imprisonment. After hearing argument, the court overruled Montgomery’s
objections to the PSR, including his opposition to the Guideline § 2G1.2(b)(5)
enhancement. Montgomery renewed the request for a downward variance, but
the court concluded a variance was unwarranted. Montgomery was sentenced,
inter alia, to 235 months’ imprisonment.
      For the first of his three issues, Montgomery asserts the court erred by
denying his motion to dismiss the indictment because the undisputed facts did
not state a violation of 18 U.S.C. § 2422(b). Denial of a motion to dismiss an
indictment is reviewed de novo. United States v. Arrieta, 862 F.3d 512, 514
(5th Cir. 2017).
      A conviction under § 2422(b) requires defendant:        used a facility of
interstate commerce to commit the offense; was aware the victim was younger
than 18; by engaging in sexual activity with the victim, could have been
charged with a criminal offense under state law; and knowingly persuaded,
induced, enticed, or coerced the victim to engage in criminal sexual activity.
18 U.S.C. § 2422(b); United States v. Rounds, 749 F.3d 326, 333 (5th Cir. 2014).
“To sustain a conviction for attempt, the evidence must show that the
defendant (1) acted with the culpability required to commit the underlying
substantive offense, and (2) took a substantial step towards its commission.”
United States v. Olvera, 687 F.3d 645, 647 (5th Cir. 2012) (internal quotation
marks and footnote omitted).
      Section 2422(b) does not require defendant actually engage in sexual
contact, see United States v. Barlow, 568 F.3d 215, 219 n.10 (5th Cir. 2009);



                                       5
    Case: 17-41182     Document: 00514617748     Page: 6   Date Filed: 08/27/2018


                                  No. 17-41182

and defendant can violate the statute solely through communications with an
adult where defendant directs his inducements to a child, Olvera, 687 F.3d at
647–48, 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).
      Montgomery contends the undisputed facts were insufficient to state a
violation of § 2422(b) because it requires “defendant’s interaction with the
intermediary . . . be aimed at transforming or overcoming the child’s will”.
United States v. Hite, 769 F.3d 1154, 1164 (D.C. Cir. 2015). In doing so,
Montgomery attempts to distinguish our court’s holding in Caudill by
asserting our court required confirmation that Caudill’s minor victims would
engage in sexual intercourse, whereas Montgomery “only agreed to an initial
meeting with the adult intermediary and fictitious minor to get to know them[,]
and no offer of compensation was made”. Montgomery also notes he rejected
the Agent’s offer to pass a message to her daughter before the meeting and
there was no evidence of communication with the minor.
      Nevertheless, our circuit requires only that defendant take “actions
directed toward obtaining the child’s assent through an intermediary”. Olvera,
687 F.3d at 648 (emphasis omitted). Defendant can attempt to persuade,
induce, entice, or coerce a minor to engage in sexual activity by relying on a
parent’s influence or control over the child. See Caudill, 709 F.3d at 447. The
indictment alleged Montgomery’s inducements were directed at obtaining a
ten-year-old child’s consent to sexual activity through a Government agent he
believed to be the child’s mother. Further, “[w]hether there was inducement,
persuasion, or enticement is a question of fact for the jury to decide”. United
States v. Lundy, 676 F.3d 444, 450 (5th Cir. 2012). Therefore, the court did not
err by denying Montgomery’s motion to dismiss the indictment.




                                        6
    Case: 17-41182    Document: 00514617748     Page: 7   Date Filed: 08/27/2018


                                 No. 17-41182

      Montgomery next asserts the court erred by denying his motion for
judgment of acquittal and abused its discretion by denying his new-trial
motion. Because both motions were based on the same grounds, they will be
discussed together. Montgomery claims the trial evidence was insufficient to
show: his intent to violate § 2422(b); he took a substantial step corroborating
that intent; and the Government rebutted his prima facie showing of
entrapment.
      The denial of Montgomery’s motion for judgment of acquittal is reviewed
de novo. United States v. Lewis, 774 F.3d 837, 841 (5th Cir. 2014). Denial of
the new-trial motion is reviewed for abuse of discretion; questions of law, de
novo. United States v. Pratt, 807 F.3d 641, 645 (5th Cir. 2015). A new trial
may be granted in the interest of justice. Fed. R. Crim. P. 33(a). Motions for
a new trial are “disfavored and reviewed with great caution”. Pratt, 807 F.3d
at 645.
      When reviewing a challenge to the sufficiency of the evidence, our 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). The evidence is viewed “in the light most favorable to the verdict”,
and this court accepts “all credibility choices and reasonable inferences made
by the trier of fact which tend to support the verdict”. Id. (internal quotation
marks and citation omitted). “The evidence presented need not exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt.” Id. (internal quotation marks and citation
omitted). “[T]his court asks only whether the jury’s decision was rational, not
whether it was correct”. Lewis, 774 F.3d at 841 (internal quotation marks and




                                       7
    Case: 17-41182     Document: 00514617748     Page: 8   Date Filed: 08/27/2018


                                  No. 17-41182

citation omitted). Montgomery claims the evidence was insufficient in the
following three ways. Each claim fails.
      First, Montgomery contends: § 2422(b) “does not criminalize intent to
persuade at a future face-to-face meeting, or agreeing or arranging to have sex
with a minor through an adult intermediary”; and “the adult must direct some
of his inducements to the minor . . . or seek confirmation that the minor would
engage in sexual activity”.     Nevertheless, our court has specifically held
“defendant’s acts must target a child”, but “the terms ‘persuade,’ ‘induce,’
‘entice,’ or ‘coerce’ do not require that there be communication between a
perpetrator and a child or that a perpetrator must request an intermediary to
convey the perpetrator’s communications to a minor”. Caudill, 709 F.3d at 447.
      Montgomery sought confirmation that the Agent’s daughter would be
interested in having sex with him, and asked the Agent to explain why she
thought her daughter would be interested in him. Further, Montgomery’s
communications with the Agent evinced an intent to persuade, induce, entice,
or coerce her child into sexual activity by stating that, for the first encounter,
they would need to give the child “sleepy medicine so she will tape [sic] a nap
while we play w [sic] her”, and by relying on the Agent’s influence over her
child. Montgomery asked what the Agent wanted to have happen to her “little
babe”; described his “ideal night” with the daughter at the Agent’s request and
stated he would not “force the situation”; offered to give the child a trophy he
won; asked the Agent what she had told her daughter about him; and stated
he would hate to disappoint the child. In short, a rational jury could have
found the evidence sufficient to show Montgomery possessed the requisite
intent to violate § 2422(b). See Pratt, 807 F.3d at 645; Imo, 739 F.3d at 235;
Lewis, 774 F.3d at 841.




                                        8
    Case: 17-41182     Document: 00514617748      Page: 9   Date Filed: 08/27/2018


                                  No. 17-41182

      Second, Montgomery contends the evidence did not show he took a
substantial step toward a violation of § 2422(b). “A substantial step is defined
as conduct which strongly corroborates the firmness of defendant’s criminal
attempt.” United States v. Broussard, 669 F.3d 537, 547 (5th Cir. 2012)
(internal quotation marks and citation omitted).
      Our court has routinely held conduct like Montgomery’s constitutes a
substantial step toward committing a violation of § 2422(b). See, e.g., Olvera,
687 F.3d at 648 (finding defendant took substantial steps by asking adult
intermediary to send sexual messages and photos to a minor and arriving at
arranged meeting place); Barlow, 568 F.3d at 219–20 (finding defendant took
a substantial step when, over the course of months, he engaged in sexual
conversations with a purported minor, drove to the meeting location, and then
left early); United States v. White, 636 F. App’x 890, 893 (5th Cir. 2016) (finding
the evidence was sufficient to show an attempt to violate § 2422(b) when
defendant exchanged sexual messages with purported minor and arrived at
arranged meeting place with condoms), cert. denied, 136 S. Ct. 2039 (2016).
“Travel to a meeting place is . . . sufficient to establish” a substantial step
toward an attempt to violate § 2422(b). United States v. Howard, 766 F.3d 414,
421 (5th Cir. 2014).
      Third, Montgomery asserts the evidence was insufficient to support the
jury’s rejection of his entrapment defense. To establish entrapment, defendant
must make a prima facie showing of “(1) his lack of predisposition to commit
the offense and (2) some governmental involvement and inducement more
substantial than simply providing an opportunity or facilities to commit the
offense”. United States v. Theagene, 565 F.3d 911, 918 (5th Cir. 2009). The
burden then shifts to the Government “to prove beyond a reasonable doubt that
the defendant was disposed to commit the offense prior to first being



                                        9
   Case: 17-41182      Document: 00514617748    Page: 10   Date Filed: 08/27/2018


                                 No. 17-41182

approached by government agents”. United States v. Bradfield, 113 F.3d 515,
522 (5th Cir. 1997).
      Generally, entrapment is a question for the jury. Mathews v. United
States, 485 U.S. 58, 63 (1988).     When, as here, the jury is instructed on
entrapment, “the applicable standard of review is the same which applies to
sufficiency of the evidence”. United States v. Reyes, 239 F.3d 722, 739 (5th Cir.
2001) (internal quotation marks and citation omitted). In other words, our
court must accept the facts in the light most favorable to the verdict and
reverse “only if no rational jury could have found beyond a reasonable doubt
either (1) lack of government inducement or (2) predisposition to commit the
charged crime”. Id.
      Montgomery contests evidence of predisposition. He distinguishes
between sexual interest in “young ladies, [17] years or older” with sexual
interest in minors. Specifically, he points to text messages indicating his
interest in teenagers and his Craigslist ad, which requested responses from
women aged 17 to 25. He further contends his statement to the Agent that he
knew he wanted to have sex with a minor despite having never done so
suggested a “fantasy” rather than a “true predisposition” to sexual attraction
to minors.     Nevertheless, the evidence was sufficient to show both
predisposition and lack of Government influence.
      Upon first learning the Agent’s daughter was ten years old, Montgomery
immediately asked whether she and her daughter were sexually active
together. The Agent testified that, in other investigations, suspects would
often react with revulsion or immediately disengage upon learning her
daughter’s age. Montgomery also quickly suggested giving the child “sleepy
medicine so she will tape [sic] a nap while we play w [sic] her”. He stated he
“like[d] younger” and knew what he wanted when questioned about his sexual



                                       10
   Case: 17-41182     Document: 00514617748      Page: 11   Date Filed: 08/27/2018


                                  No. 17-41182

interest in the child. Despite the Agent’s statements that she did not intend
to have sex with Montgomery and was not interested in role play, Montgomery
continued to chat with her. Montgomery was also aware of the illegal nature
of his actions and demonstrated knowledge about avoiding legal repercussions.
Finally, the Agent disengaged from the conversation at times and offered
Montgomery several opportunities to abandon his plans. Because the evidence
showed Montgomery’s “active, enthusiastic participation” and “demonstrated
expertise in the criminal endeavor”, it was sufficient to show his predisposition.
See Theagene, 565 F.3d at 919.
      In sum, a rational jury could have found the evidence sufficient to show
Montgomery possessed the requisite intent to violate § 2422(b), took a
substantial step toward the commission of the offense, and was not entrapped.
Accordingly, the court did not err or abuse its discretion by denying his
motions.
      Regarding his sentence, Montgomery contends the court erred by
overruling his objection to the eight-level enhancement under Guideline
§ 2G1.3(b)(5). (Although Montgomery references the court’s not granting his
request for a downward variance, he fails to brief adequately any asserted
error in the court’s decision, thereby waiving the issue (if, in fact, it is even
raised). See United States v. Reagan, 596 F.3d 251, 254–55 (5th Cir. 2010).)
      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues



                                       11
    Case: 17-41182      Document: 00514617748    Page: 12   Date Filed: 08/27/2018


                                  No. 17-41182

preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.     E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Section 2G1.3(b)(5) applies an eight-level enhancement to the base
offense level if “the offense involved a minor who had not attained the age of
12 years”. U.S.S.G. § 2G1.3(b)(5). The Guidelines define a “minor” as
      (A) An individual who had not attained the age of 18 years; (B) an
      individual, whether fictitious or not, who a law enforcement officer
      represented to a participant (i) had not attained the age of 18
      years, and (ii) could be provided for the purposes of engaging in
      sexually explicit conduct; or (C) an undercover law enforcement
      officer who represented to a participant that the officer had not
      attained the age of 18 years.
Id. § 2G1.3 cmt. n.1.
      Montgomery contends the court erred by applying the enhancement
because the Agent unilaterally chose the age of the fictitious minor, which
allowed the Government to manipulate his sentence in a violation of due
process. Further, he claims the Government’s selection of the minor’s age
constitutes sentence entrapment or sentence factor manipulation.
      Sentencing entrapment or sentence factor manipulation “occurs when a
defendant, although predisposed to commit a minor or lesser offense, is
entrapped in committing a greater offense subject to greater punishment”.
United States v. Jones, 664 F.3d 966, 984 (5th Cir. 2011).            In claiming
sentencing entrapment, defendant must establish he was persuaded to commit
a greater offense than he otherwise was predisposed to commit or that the
conduct of law enforcement officials was overbearing or outrageous. United
States v. Robertson, 297 F. App’x 316, 317 (5th Cir. 2008).
      Our court has not determined whether the concept of sentencing
entrapment or factor manipulation is a cognizable claim but has addressed a
similar contention in the context of a due-process claim. Jones, 664 F.3d at

                                        12
   Case: 17-41182    Document: 00514617748       Page: 13   Date Filed: 08/27/2018


                                  No. 17-41182

984; Robertson, 297 F. App’x at 317 (noting viability of “sentencing
entrapment” defense remains unresolved); see also United States v. Tremelling,
43 F.3d 148, 150–52 (5th Cir. 1995) (declining to recognize the defense but
instead analyzing the claim under the due-process outrageous-conduct
standard). Assuming, without deciding, our court recognizes such a defense,
Montgomery has not met his burden to show that he was persuaded to commit
a greater offense than he otherwise was predisposed to commit or that the
conduct of law enforcement officials was overbearing or outrageous.           See
Robertson, 297 F. App’x at 317.
      As discussed supra, he eagerly discussed the possibility of having sex
with the Agent’s daughter after learning she was ten years old and even
suggested drugging the child with sleeping medicine. He asserted he “like[d]
younger” and knew what he wanted when questioned about his sexual interest
in the child. And, the Agent’s conduct was not overbearing or outrageous
because she repeatedly disengaged from the conversation and offered
Montgomery opportunities to abandon his plans.
      AFFIRMED.




                                      13
