              Case: 16-17326    Date Filed: 09/25/2017   Page: 1 of 4


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-17326
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 3:15-cr-00035-MCR-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

ROBERT M. GRAFTON, JR.,

                                                             Defendant-Appellant.

                          ________________________

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

                               (September 25, 2017)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

      On June 16, 2015, a Northern District of Florida grand jury returned a two-

count indictment charging Robert Grafton, Jr. in Count One with using a facility in
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interstate commerce to persuade, induce, entice and coerce a minor to engage in

sexual activity for which any person could be charged with a criminal offense, in

violation of 18 U.S.C. § 2422(b), and in Count Two with possessing child

pornography that involved a prepubescent minor, in violation of 18 U.S.C. §

2252A(a)(5)(B). Grafton pled guilty to Count Two. He pled not guilty to Count

One and stood trial before a jury. He was convicted. He now appeals his Count

One conviction, arguing that the District Court, in charging the jury, erred in

defining the term “induce” in § 2422(b) as “to stimulate the occurrence of or to

cause the minor’s assent.” We affirm.

      We review the legal correctness of jury instructions de novo and the trial

court’s phrasing of its instructions for abuse of discretion. United States v.

Seabrooks, 839 F.3d 1326, 1332 (11th Cir. 2016). Our task is “to determine

whether the instructions misstated the law or misled the jury to the prejudice of the

objecting party.” United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013)

(quotation omitted). “When the jury instructions, taken together, accurately

express the law applicable to the case without confusing or prejudicing the jury,

there is no reason for reversal even though isolated clauses may, in fact, be

confusing, technically imperfect, or otherwise subject to criticism.” Id. (quotation

omitted).

      Section 2422(b) imposes criminal penalties on whoever uses interstate


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commerce and “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.” 18 U.S.C. § 2422(b). A conviction for attempt under § 2422(b) requires

that the defendant (1) intended to cause assent on the part of the minor, and (2)

took actions that constituted a substantial step toward causing assent. United

States v. Lanzon, 639 F.3d 1293, 1299 (11th Cir. 2011) (quoting United States v.

Lee, 603 F.3d 904, 914 (11th Cir. 2010)).

      Section 2422(b) “criminalizes an intentional attempt to achieve a mental

state—a minor’s assent.” Lee, 603 F.3d at 914 (quotation omitted). On the issue

of intent, the Government must prove that the accused “intended to cause assent on

the part of the minor, not that he acted with the specific intent to engage in sexual

activity.” Id. (quotation omitted). We have previously held that the term “induce”

in § 2422 means “to stimulate the occurrence of; cause,” and rejected an alternative

definition that rendered it essentially synonymous with the word “persuade.”

United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004) (alteration omitted)

(quotation omitted).

      A panel of this Court must apply its precedent unless this Court sitting en

banc or the Supreme Court overturns the precedent. United States v. Vega-

Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quoting United States v. Brown,


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342 F.3d 1245, 1246 (11th Cir. 2003)). The District Court applied Murrell, as it

was bound to do, in defining “induce” as “to stimulate the occurrence of or to

cause the minor’s assent.” Murrell forecloses Grafton’s argument.


       AFFIRMED. 1




       1
        Grafton petitioned this Court to hear his appeal in the first instance. His petition is
denied without prejudice to his right to petition the Court for rehearing en banc.
                                                 4
