              Case: 16-10540    Date Filed: 12/29/2016   Page: 1 of 7


                                                         [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 16-10540
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 3:15-cr-00050-MCR-1

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                      versus

ROBERT F. MATLACK,

                                                         Defendant-Appellant.
                          ________________________

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

                               (December 29, 2016)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Robert Matlack appeals his conviction for attempting to entice an individual

under 14 years of age to engage in a commercial sex act, in violation of 18 U.S.C.

§§ 1591(a)(1), (b)(1), and 1594(a) (“Count 1”), and using a facility and means of
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interstate commerce to entice or induce an individual under 18 years of age to

engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (“Count 2”). On

appeal, he argues that: (1) the district court plainly erred by failing to determine

that the government engaged in sentencing factor manipulation; and (2) the district

court abused its discretion by declining to give his proposed jury instruction. After

careful review, we affirm.

      First, we are unpersuaded by Matlack’s claim that the district court plainly

erred by failing to hold that the government engaged in sentencing factor

manipulation. When a party raises an issue for the first time on appeal, as Matlack

does here, we review for plain error. United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir. 2005). To show plain error, the defendant must show (1) an error,

(2) that is plain, and (3) that affected his substantial rights. United States v.

Turner, 474 F.3d 1265, 1275-76 (11th Cir.2007). If the defendant satisfies the

three conditions, we may exercise our discretion to recognize the error if it

seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Id. at 1276. There can be no plain error where there is no precedent from the

Supreme Court or us directly resolving the issue. United States v. Charles, 722

F.3d 1319, 1331 (11th Cir. 2013).

      Sentencing factor manipulation occurs when the government manipulates a

sting operation to increase a defendant’s potential sentence. United States v. Haile,


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685 F.3d 1211, 1223 (11th Cir. 2012) (per curiam). When claiming sentencing-

factor manipulation, a defendant alleges that although he was predisposed to

commit a minor or lesser offense, he was entrapped into committing a greater

offense subject to greater punishment. United States v. Bohannon, 476 F.3d 1246,

1252 (11th Cir. 2007).         “Sentencing factor manipulation” involves “the

opportunities that the sentencing guidelines pose for prosecutors to gerrymander

the district court’s sentencing options and thus, defendant’s sentences.” United

States v. Sanchez, 138 F.3d 1410, 1414 (11th Cir. 1998) (quotation omitted).

“While sentencing entrapment focuses on the defendant’s predisposition,

sentencing factor manipulation focuses on the government’s conduct.” Id.

      A sentencing factor manipulation claim requires us to consider whether the

manipulation inherent in the sting operation, even if insufficiently oppressive to

support an entrapment defense, or due process claim, warrants a sentencing

reduction. Haile, 685 F.3d at 1223. A reduction to a defendant’s sentence is only

warranted, however, if the sting operation involved extraordinary misconduct. Id.

The party raising the defense of sentencing factor manipulation bears the “burden

of establishing that the government’s conduct is sufficiently reprehensible.”

United States v. Ciszkowski, 492 F.3d 1264, 1271 (11th Cir. 2007).

      Although we’ve recognized sentencing factor manipulation as a means for a

sentence reduction, we’ve never applied it. See id. (government’s provision of a


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firearm equipped with a silencer was not sentencing factor manipulation, even

though the possession of which triggered a mandatory 30-year minimum sentence);

Haile, 685 F.3d at 1223 (government’s initiation of a conversation about guns was

not manipulation, when it was defendants who agreed to supply the guns, brought

the guns to the transaction, and did not reject the offer or express any discomfort

with the idea); United States v. Bohannon, 476 F.3d 1246, 1252 (11th Cir. 2007)

(government’s selection of age of “minor” victim for sting operation was not

manipulation even though the selected age resulted in enhancement under the

guidelines); United States v. Williams, 456 F.3d 1353, 1370-71 (11th Cir. 2006),

abrogated on other grounds by Kimbrough v. United States, 552 U.S. 85, 93 (2007)

(government’s purchase of crack cocaine rather than powder cocaine was not

manipulation despite sentencing differential); Sanchez, 138 F.3d at 1412-13

(government informant’s selection of a fictitious amount of drugs to be stolen by

defendants was not manipulation of the quantity).

      Pursuant to 18 U.S.C. § 1591(b)(2), the mandatory minimum punishment for

enticing an individual under 18 years of age to engage in a commercial sex act is

10 years’ imprisonment.     However, pursuant to 18 U.S.C. § 1591(b)(1), the

mandatory minimum punishment for enticing an individual under 14 years of age

to engage in a commercial sex act is 15 years’ imprisonment.




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      Here, we cannot say that the district court erred, much less plainly erred, by

failing to hold that the government engaged in sentencing factor manipulation by

using a fictitious 12-year-old child to catch Matlack in a crime with an enhanced

sentence. While the government was the first to mention a 12-year-old child, it

was Matlack who initiated the conversation with the fictitious mother and was the

first to mention wanting “young stuff.” In cases involving similar circumstances,

we’ve declined to find sentencing factor manipulation. See Haile, 685 F.3d at

1223; Bohannon, 476 F.3d at 1252; Sanchez, 138 F.3d at 1412-13; Williams, 456

F.3d at 1370-71. In each of these cases, it was the defendants, like Matlack, who

agreed to the terms, who took steps to engage in the transaction, and who did not

reject the offer or express any discomfort with the idea. Indeed, Matlack could

have said no to the transaction based on the age of the child, but he did not. And in

any event, there can be no plain error where there is no precedent from the

Supreme Court or this Court indicating that the government engaged in

extraordinary misconduct that amounted to sentencing factor manipulation. See

Charles, 722 F.3d at 1331; Ciszkowski, 492 F.3d at 1271.

      We also find no merit to Matlack’s claim that the district court abused its

discretion by declining to give his proposed jury instruction about using a facility

and means of interstate commerce to entice an individual under 18 years of age to

engage in sexual activity. We review the district court’s refusal to submit a


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defendant’s requested jury instruction for abuse of discretion. United States v.

Hill, 799 F.3d 1318, 1320 (11th Cir. 2015). We consider three factors when

determining whether the district court’s refusal to give a requested jury instruction

warrants reversal: (1) whether the requested instruction is a substantially correct

statement of the law; (2) whether the jury charge given addressed the requested

instruction; and (3) whether the failure to give the requested instruction seriously

impaired the defendant’s ability to present an effective defense. Id.

      It is a crime to use a facility and means of interstate commerce to entice or

induce an individual under 18 years of age to engage in sexual activity. 18 U.S.C.

§ 2422(b). We have held that to “induce” means to attempt to stimulate or cause

the minor to engage in sexual activity. United States v. Murrell, 368 F.3d 1283,

1287 (11th Cir. 2004).

      Here, the district court did not abuse its discretion by declining to give

Matlack’s proposed jury instruction regarding Count 2. As the record shows, (1)

Matlack’s requested instruction was based on D.C. Circuit precedent and was an

incorrect statement of this Court’s law; (2) the jury charge given addressed the

correct statement of law under this Court’s precedent regarding Count 2; and (3)

the failure to give the requested instruction did not impair the Matlack’s ability to

present an effective defense because the requested instruction was not the law

under which Matlack needed to present a defense. Thus, the district court did not


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abuse its discretion when it declined to provide Matlack’s requested jury

instruction that was an incorrect statement of the law and, instead, provided jury

instructions with the correct law.

      AFFIRMED.




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