         Case: 14-15577   Date Filed: 02/17/2016   Page: 1 of 11


                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 14-15577
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 8:13-cr-00215-EAK-AEP-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus

ERASMO AGUINAGA,

                                                       Defendant-Appellant.


                     ________________________

                           No. 14-15579
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 8:05-cr-00498-EAK-AEP-8



UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee,
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                                       versus

ERASMO AGUINAGA,
a.k.a. E-Rock,
a.k.a. Gordo,
a.k.a. Eddie,

                                                             Defendant - Appellant.

                           ________________________

                   Appeals from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                (February 17, 2016)

Before WILLIAM PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Erasmo Aguinaga appeals his conviction and 180-month sentence for

attempt to entice a minor to engage in a sexual act in violation of 18 U.S.C.

§ 2422(b). He also appeals his 24-month sentence imposed under 18 U.S.C.

§ 3583(e)(3) for violating the conditions of his supervised release.

      Aguinaga makes five arguments on appeal. He first argues that the district

court abused its discretion by granting the government’s motion in limine to

preclude him from presenting an entrapment defense at trial. He next argues that

the district court abused its discretion by allowing the government to introduce into

evidence highly prejudicial and irrelevant phone calls between Aguinaga and his


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girlfriend made while Aguinaga was in prison. Third, Aguinaga argues that the

district court erred in denying his motion for judgment of acquittal because the

government did not present sufficient evidence that he intended to entice a person

he believed to be a minor to engage in unlawful sexual activity. Aguinaga further

argues that the district court erred under Federal Rule of Criminal Procedure

32(i)(3) because it failed to delete a disputed factual statement contained in his

presentence investigation report (“PSI”). Finally, Aguinaga argues that his 180-

month sentence for enticement of a minor and his 24-month concurrent sentence

for violating conditions of his supervised release were substantively unreasonable.

                                          I.

      Aguinaga first argues that the district court abused its discretion by granting

the government’s motion in limine to prevent him from presenting an entrapment

defense at trial. We review a district court’s grant of a motion in limine for abuse

of discretion. United States v. Thompson, 25 F.3d 1558, 1563 (11th Cir. 1994).

“An abuse of discretion occurs where the district court’s decision rests upon a

clearly erroneous finding of fact, an errant conclusion of law, or an improper

application of law to fact.” United States v. Jayyousi, 657 F.3d 1085, 1113 (11th

Cir. 2011) (quotation omitted). Generally, courts should not prohibit a defendant

from presenting a defense theory to the jury, but there must be a factual basis for

the defense. Thompson, 25 F.3d at 1564.


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      To establish the affirmative defense of entrapment, a defendant must show

that (1) the government induced the crime and (2) the defendant was not

predisposed to commit the crime. United States v. Sistrunk, 622 F.3d 1328, 1333

(11th Cir. 2010). A defendant bears the burden of producing sufficient evidence to

show that the government’s actions created a substantial risk that the offense

would be committed by someone not previously ready to commit it. Id. This

burden is light, but the defendant must show that the government persuaded or

coerced him—the government’s mere suggestion of a crime or initiation of contact

is not enough. Id.

      The district court did not abuse its discretion in granting the government’s

motion in limine to preclude Aguinaga from raising an entrapment defense because

Aguinaga failed to produce sufficient evidence of government inducement. The

government provided Aguinaga with an opportunity to commit the crime by

posting the personal ad to which Aguinaga responded and using an agent to pose as

a 14-year-old female. However, those facts alone are insufficient to show that the

government induced Aguinaga to commit the offense.

      There is no evidence that the government persuaded Aguinaga to engage in a

sexual conversation with a person who Aguinaga thought was a minor. Aguinaga

initiated the discussion of sexual topics after being told that he was speaking to a

14-year-old female. There is also no evidence that the government coerced


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Aguinaga to meet that person: Aguinaga repeatedly asked for her address, and

arrived at the specified location seven minutes after receiving the address.

                                          II.

      Aguinaga next argues that the district court abused its discretion by

admitting into evidence two “irrelevant” and “highly prejudicial” recorded phone

calls between Aguinaga and his girlfriend that were made while Aguinaga was in

prison. We review a district court’s evidentiary rulings for abuse of discretion.

United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007). Where the

district court admitted evidence over a Federal Rule of Evidence 403 challenge, we

will find any abuse of discretion only if that decision “is unsupportable when the

evidence is viewed in the light most supportive of the decision.” United States v.

Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003). We will not reverse an erroneous

evidentiary ruling if the resulting error was harmless. United States v. Langford,

647 F.3d 1309, 1323 (11th Cir. 2011).

      Under Rule 403, the court may exclude evidence that is otherwise relevant

“if its probative value is substantially outweighed by a danger of . . . unfair

prejudice.” Fed. R. Evid. 403. Rule 403 is an extraordinary remedy that courts use

only sparingly because it allows the exclusion of otherwise relevant evidence.

United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006). Rule 403 does not

mandate the exclusion of evidence simply because other evidence addresses the


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same issues. United States v. Eyster, 948 F.2d 1196, 1212 (11th Cir. 1991).

Evidence is considered unfairly prejudicial for Rule 403 purposes if it “lure[s] the

factfinder into declaring guilt on a ground different from proof specific to the

offense charged.” Old Chief v. United States, 519 U.S. 172, 180, 117 S. Ct. 644,

650 (1997).

      The district court did not abuse its discretion in admitting the recorded

phone calls because the evidence was relevant. The evidence tended to show that

Aguinaga drove to a location to meet a person he thought was a 14-year-old girl. It

also tended to show that Aguinaga used his phone to commit the offense, which

was relevant because a § 2422(b) conviction requires that the defendant

“us[e] . . . any facility or means of interstate or foreign commerce,” such as a

phone, to commit the offense. 18 U.S.C. § 2422(b).

      Any unfair prejudice from the evidence also did not substantially outweigh

its probative value. Evidence that Aguinaga was “addicted” to talking to women

on his phone and that he was not faithful to his girlfriend was not unfairly

prejudicial because it did not lure the factfinder into declaring guilt on a ground

other than enticement of a minor. See Old Chief, 519 U.S. at 180, 117 S. Ct. at

650. The emotionally charged nature of the phone calls also did not foreclose the

government from introducing them into evidence at trial. Though the phone calls




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may have been duplicative of other evidence presented, this is an insufficient basis

to exclude them. See Eyster, 948 F.2d at 1212.

                                          III.

      Aguinaga next argues that the district court erred in denying his motion for

judgment of acquittal on his § 2422(b) conviction. He specifically argues that the

government did not show that Aguinaga knew he was communicating with a

person under age 18, and Aguinaga alleges that believed he was communicating

with “a consenting adult.”

      We review de novo the district court’s denial of a Rule 29 motion for

judgment of acquittal, viewing the evidence in the light most favorable to the

government and drawing all reasonable inferences in favor of upholding the

verdict. United States v. Hunt, 526 F.3d 739, 744 (11th Cir. 2008). We can

sustain a conviction if “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt” because the jury may choose

any reasonable conclusion that can be drawn from the evidence. Id. at 745

(quotation omitted). “[A] jury is free to disbelieve a defendant’s testimony and

consider it as substantive evidence of [his] guilt.” United States v. Rivera, 780

F.3d 1084, 1098 (11th Cir. 2015).

      A person may be found guilty of enticement of a minor if he “knowingly

persuades, induces, entices, or coerces any individual who has not attained the age


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of 18 years[] to engage in . . . any sexual activity.” 18 U.S.C. § 2422(b). In order

to prove an attempt to commit a § 2422(b) offense, the government must prove that

the defendant (1) specifically intended to engage in the charged criminal conduct,

and (2) took a substantial step toward committing the offense. United States v.

Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004).

      The district court did not err in denying Aguinaga’s Rule 29 motion. The

evidence was sufficient to permit a reasonable jury to conclude that Aguinaga

intended to induce a minor to engage in sexual conduct and took a substantial step

toward that offense. Aguinaga acknowledged in his testimony at trial that the

person he was speaking to online identified herself as a 14-year-old girl. After

learning the person’s age, Aguinaga twice asked if she was a police officer. He

also asked her a number of times whether she had adult supervision.

      A reasonable jury could also conclude based on the trial evidence that

Aguinaga took a substantial step toward committing a § 2422(b) offense.

Aguinaga made sexually explicit statements to the purported minor and asked for

her address. He also drove to the location he was told was her home. Though

Aguinaga testified that he believed the person with whom he was communicating

was actually 22 years old and not a minor, the jury was free to disbelieve this

testimony and use it as substantive evidence of his guilt.




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                                         IV.

      Aguinaga also argues that the district court erred under Federal Rule of

Criminal Procedure 32(i)(3) by failing to either delete a disputed factual statement

in his PSI or make an express determination that no finding was necessary because

the information would not be taken into account at sentencing. We review legal

questions regarding the Federal Rules of Criminal Procedure de novo. United

States v. Spears, 443 F.3d 1358, 1361 (11th Cir. 2006) (per curiam). When a

defendant disputes a factual statement contained in his PSI, the sentencing court

must either make a finding about the disputed statement or determine that a finding

is unnecessary because the disputed statement will not be considered in sentencing.

Fed. R. Crim. P. 32(i)(3)(B). A written record of that finding must be included

with the PSI and provided to the Bureau of Prisons. Fed. R. Crim. P. 32(i)(3)(C).

      The district court did not comply with Rule 32(i)(3) in ruling on Aguinaga’s

request to remove from his PSI disputed information about his alleged sexual

molestation of certain family members. The court did not fulfill its obligation

under Rule 32(i)(3)(B) to either make a factual finding about the accuracy of the

disputed statement or expressly determine that a finding was not necessary because

the disputed factual information would not be relied upon at sentencing. The court

further failed to attach its determination regarding his objections to the PSI as was

required under Rule 32(i)(3)(C).


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       Accordingly, we remand this case to the district court so that it may append

to Aguinaga’s PSI either a factual finding about the disputed statement or a

statement that a finding was unnecessary because the court did not consider the

disputed statement in sentencing Aguinaga. Resentencing will be necessary if the

district court determines that the factual information it relied upon at Aguinaga’s

original sentence proceeding was not accurate.

                                                V.

       Finally, Aguinaga argues that his total sentence was substantively

unreasonable in light of the factors the district court is obligated to consider under

18 U.S.C. § 3553(a). We review the substantive reasonableness of a sentence for

an abuse of discretion, considering the totality of the facts and circumstances.

United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc). We

ordinarily expect that a sentence falling within the guideline range is reasonable.

Hunt, 526 F.3d at 746.

       The party challenging the sentence bears the burden of showing the sentence

is unreasonable in light of the record and the § 3553(a) sentencing factors. 1 United


       1
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the offense’s seriousness; (3)
the need to afford adequate deterrence to the criminal conduct; (4) the need to protect the public
from further crimes by the defendant; (5) the need to provide the defendant with educational or
vocational training or medical care; (6) the kinds of sentences available; (7) the advisory
guideline range; (8) the pertinent U.S. Sentencing Commission policy statements; (9) the need to
avoid unwarranted sentencing disparities among defendants found guilty of similar conduct; and
(10) the need to provide victims with restitution. 18 U.S.C. § 3553(a).
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States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). A district court’s sentence

must be “sufficient, but not greater than necessary” to provide just punishment for

the offense, deter the defendant from future criminal conduct, protect the public,

and provide the defendant with necessary rehabilitation. 18 U.S.C. § 3553(a). We

will vacate a sentence only if we are left with a firm conviction that the district

court clearly erred in weighing the § 3553(a) factors and imposed a sentence

outside the range of reasonable sentences considering the facts of the case. Irey,

612 F.3d at 1190.

      Aguinaga failed to carry his burden of showing that his 180-month sentence

for enticement of a minor and concurrent 24-month sentence for violating the

conditions of his supervised release were substantively unreasonable in light of the

record and the § 3553(a) factors. After hearing from both parties, the district court

said it had considered Aguinaga’s PSI, the advisory sentencing guidelines range,

and the § 3553(a) factors to determine that a sentence at the higher end of the

guideline range was appropriate. The district court expressly discussed the nature

of the offense and the fact that Aguinaga had five children of his own as important

factors in setting Aguinaga’s sentence.

      Upon careful review of the record and the parties’ briefs, we affirm in part

and remand in part for the district court to comply with proper procedures.

      AFFIRMED IN PART, REMANDED IN PART.


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