11-4206-cr
United States v. Boisvert
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 10th day of October, two thousand twelve.

PRESENT: REENA RAGGI,
         PETER W. HALL,
         DEBRA ANN LIVINGSTON,
                   Circuit Judges.

----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                            v.                                           No. 11-4206-cr

EUGENE C. BOISVERT,
                                 Defendant-Appellant.
----------------------------------------------------------------------

APPEARING FOR APPELLANT:                          STEVEN B. RASILE, Mirto & Rasile, LLC,
                                                  West Haven, Connecticut.

APPEARING FOR APPELLEE:                           SANDRA S. GLOVER (Robert M. Spector, on
                                                  the brief), Assistant United States Attorneys, for
                                                  David B. Fein, United States Attorney for the
                                                  District of Connecticut, New Haven, Connecticut.
       Appeal from a judgment of the United States District Court for the District of

Connecticut (Vanessa L. Bryant, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of conviction entered on October 12, 2011, is AFFIRMED.

       Eugene Boisvert appeals from a judgment of conviction entered after jury trial at

which he was found guilty of (1) using a means of interstate commerce to attempt to entice

a minor to engage in sexual activity, see 18 U.S.C. § 2422(b); and (2) traveling in interstate

commerce for the purpose of engaging in illicit sexual conduct, see id. § 2423(b), (e).

Boisvert argues that the district court erred in denying his motion to dismiss the § 2422(b)

count. He further contends that his 136-month prison sentence is both procedurally and

substantively unreasonable. We assume the parties’ familiarity with the facts and record of

prior proceedings, which we reference only as necessary to explain our decision to affirm.

1.     Legal Impossibility

       Boisvert moved to dismiss the § 2422(b) count of the indictment on the ground that

the target of his sexually explicit internet chatroom messages was not a 14-year-old girl

named Jessie, as he believed, but rather an adult detective with the Hartford Police

Department. Boisvert acknowledges controlling precedent holding “that the involvement of

an actual minor is not a prerequisite to an attempt conviction under [18 U.S.C.] § 2422(b).”

United States v. Gagliardi, 506 F.3d 140, 147 (2d Cir. 2007). Insofar as Boisvert points to

cases from other circuits recognizing legal impossibility as a valid defense to criminal


                                              2
liability, that truism affords him no relief. Gagliardi made plain that a defendant who, like

Boisvert, argues “that he could not have completed the intended crime of enticement because

extraneous circumstances unknown to him rendered completion impossible” essentially urges

“a defense of factual impossibility.” Id. at 146; see also id. at 149 (recognizing as “frivolous

on its face” argument that factually impossible substantive charge under § 2422(b) should

be construed instead as legally impossible conspiracy charge).

       Courts that have distinguished legal from factual impossibility confine the former to

situations where the actions set in motion by defendant, “even if fully carried out as he

desires, would not constitute a crime.” United States v. Farner, 251 F.3d 510, 513 (5th Cir.

2001) (emphasis in original; internal quotation marks omitted); see also United States v.

Coffman, 94 F.3d 330, 333 (7th Cir. 1996) (Posner, J.) (recognizing that, although “it is not

a criminal attempt to try to do what the criminal law does not forbid you to do,” attempt is

nevertheless criminal where “if completed in accordance with the defendant’s understanding

of the circumstances [it] would have resulted in a crime”). A defense of legal impossibility

would afford Boisvert no relief because the trial evidence makes clear that his plan in sending

sexually explicit messages to a presumptive 14-year-old girl, and then traversing state lines

to meet her at a public beach, was to engage a minor in sexual conduct.

       Boisvert further argues that strict application of Gagliardi raises due process concerns

insofar as it leaves a defendant “with a legally defenseless position when defending an

attempt to violate [§] 2422.” Appellant Br. 10. He posits that a defendant whose actions


                                               3
superficially evince a desire to engage a minor in sexual activity “may simply be role-playing

or engaging in fantasy.” Id. This argument fails for several reasons. As an initial matter,

Gagliardi in no way relieves the government of its burden to prove defendant’s intent to

engage a minor in sexual activity, nor does it limit a defendant’s ability to challenge the

sufficiency of that proof or to offer contrary evidence himself. See 506 F.3d at 147. More

to the point, Boisvert here did just that, by testifying that his persistent communications of

a sexual nature with putative 14-year-old “Jessie” were intended to “scare” her away from

internet chatrooms, and that he drove to her home in Connecticut not to accompany her to

the beach for sexual purposes, but to inform her parents of her conduct online. The fact that

the jury discredited Boisvert’s testimony of innocent intent does not mean he was denied the

right to present that defense.

       Thus, we reject as without merit Boisvert’s argument that his § 2422(b) conviction is

legally insufficient.

2.     Sentence

       a.     Procedural Error

       Boisvert contends that the district court erred in applying a two-level enhancement for

obstruction of justice, see U.S.S.G. § 3C1.1, to his Guidelines calculation in light of his trial

testimony. “In reviewing a challenge to a district court’s application of § 3C1.1, we examine

its findings of fact only for clear error, and whether those facts constitute obstruction of

justice is a question of law that we review de novo.” United States v. Canova, 412 F.3d 331,

356 (2d Cir. 2005).

                                               4
       The district court found that Boisvert gave “patently false” trial testimony in

maintaining that he drove to Connecticut only to inform the presumed minor’s parents about

her inappropriate communications with adult strangers. J.A. 206. Boisvert submits that his

failure to contact the minor’s school or the police instead shows only his lack of planning.

As the district court recognized, however, the falsity of Boisvert’s trial testimony was

confirmed by his own pre-sentence, ex parte letter arguing that the 10-year mandatory

minimum sentence was unconstitutional because he was not a predator but simply “a lonely

person who was meeting a nonexistent person to go to a public beach.” G.A. 53. Despite

Boisvert’s protestations, therefore, an enhancement was legally warranted. See, e.g., United

States v. Canova, 412 F.3d at 357 (stating that enhancement applies when defendant willfully

testifies falsely regarding material matters with the specific intent to obstruct justice); United

States v. Onumonu, 999 F.2d 43, 47 (2d Cir. 1993) (upholding obstruction enhancement

given “inherent incredibility of [defendant]’s trial testimony”).

       Although Boisvert challenges the sufficiency of the district court’s factual findings

in support of the obstruction enhancement, we review only for plain error because he did not

raise this objection below. See United States v. Marcus, 130 S. Ct. 2159, 2164 (2010)

(listing plain-error requirements “that (1) there is an error; (2) the error is clear or obvious,

rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial

rights, which in the ordinary case means it affected the outcome of the district court

proceedings; and (4) the error seriously affect[ed] the fairness, integrity or public reputation


                                                5
of judicial proceedings” (internal quotation marks omitted)); United States v. Villafuerte, 502

F.3d 204, 207–08 (2d Cir. 2007) (holding that “rigorous plain error analysis is appropriate

for” unpreserved claims of sentencing errors, including failure to make required findings).

The argument fails at the first step of analysis. The district court expressly found that

Boisvert willfully and “intentionally testif[ied] falsely concerning numerous material facts”

and with the desire “to avoid incarceration” for his crime. J.A. 205. These findings

necessarily defeat any claim of error. See United States v. Dunnigan, 507 U.S. 87, 95 (1993)

(requiring only that sentencing court make express “finding of an obstruction of, or

impediment to, justice that encompasses all of the factual predicates for a finding of

perjury”); accord United States v. Lincecum, 220 F.3d 77, 80 (2d Cir. 2000). Indeed,

Boisvert effectively concedes the point in referring to the district court’s finding that he

“perjured himself because he feared incarceration.” Appellant Br. 23.

       b.     Substantive Reasonableness

       Boisvert argues that his 136-month, within-Guidelines sentence is substantively

unreasonable because it is “greater than necessary” to achieve its penological purposes. See

18 U.S.C. § 3553(a); United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (comparing

standard    for   substantive    reasonableness     review    to   “manifest-injustice”     and

“shocks-the-conscience” standards, which “provide relief only in the proverbial ‘rare case’”).

Boisvert asserts that, given his lack of criminal history points or prior adult convictions, the

only permissible sentence would be the below-Guidelines, statutory minimum of 120 months


                                               6
for his § 2422(b) conviction. In concluding otherwise, the district court noted Boisvert’s

juvenile commission of child sexual abuse, his failure to accept responsibility for his actions,

his obstruction of justice, and his overall risk of recidivism. On this record, we cannot

conclude that the challenged 136-month sentence fell outside the broad range of

substantively reasonable choices available to the district court. See United States v. Cavera,

550 F.3d 180, 191 (2d Cir. 2008) (en banc); United States v. Jones, 531 F.3d 163, 182 (2d

Cir. 2008). Much less can we conclude that only the statutory minimum sentence was

substantively reasonable in this case. See United States v. Broxmeyer, --- F.3d ----, 2012 WL

3660316, at *25 (2d Cir. Aug. 28, 2012).

       That the defendant in United States v. Gagliardi was sentenced to the then-existing

statutory minimum sentence for a conviction under § 2422(b) does not, as Boisvert urges,

alter our conclusion. Apart from Boisvert’s bare insistence that he did not intend to engage

14-year-old “Jessie” in sexual activity, the record contains no basis from which to conclude

that Gagliardi and Boisvert are similarly situated in their history and characteristics, or that

Gagliardi committed sexual offenses as a juvenile or perjury during his criminal trial, where

his primary defense was entrapment. See United States v. Gagliardi, 506 F.3d at 149; see

also United States v. Ebbers, 458 F.3d 110, 129 (2d Cir. 2006) (noting that defendant

contrasting sentence with that of similarly situated offender must “credibly argue[] that the

disparity in sentences has no stated or apparent explanation” (citing 18 U.S.C. § 3553(a)(6))).




                                               7
Accordingly, we reject Boisvert’s challenges to the reasonableness of his sentence.

The judgment of conviction is AFFIRMED.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, Clerk of Court




                                     8
