          United States Court of Appeals
                     For the First Circuit


No. 17-1262

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      JOEL SALDAÑA-RIVERA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]


                             Before

                Torruella, Thompson, and Kayatta,
                         Circuit Judges.


     Jessica E. Earl, Assistant Federal Public Defender, with whom
Eric Alexander Vos, Federal Public Defender, Vivianne M. Marrero,
Assistant Federal Public Defender, Supervisor, Appeals Section,
and Franco L. Pérez-Redondo, Research and Writing Specialist, were
on brief, for appellant.
     Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief, for appellee.


                        February 1, 2019


	
           KAYATTA, Circuit Judge.     In March 2017, a jury convicted

Joel   Saldaña-Rivera   ("Saldaña")    under    18   U.S.C.   § 2422(b)    of

attempted coercion and enticement of a minor to engage in sexual

activity for which Saldaña could be charged with sexual assault

under the laws of Puerto Rico.        Saldaña appeals his conviction,

arguing that he could not have been charged with sexual assault

under Puerto Rico law because the person he tried to entice was an

adult federal agent posing as a minor.          Saldaña also challenges

the jury instructions regarding the government's burden of proof.

For the following reasons, we affirm Saldaña's conviction.

                                  I.

           In February 2016, Saldaña, an adult using the moniker

"Irresistible,"   engaged   in   an    online    conversation     with     an

undercover Department of Homeland Security ("DHS") agent.                 The

agent, using the moniker "JessiRiv," told Saldaña he was an eleven-

year-old girl. The conversation began in an online chatroom before

moving to Kik Messenger, a messaging application for mobile devices

that provides some degree of anonymity to users.

           During the conversation, Saldaña sent photographs of

himself to "JessiRiv" and asked her to send photographs back.

Saldaña also asked "JessiRiv" where her father was and what she

was wearing.    During the course of their conversation, Saldaña

agreed to meet "JessiRiv" in person with the understanding that




                                 - 2 -
they   would    go   to   her    parents'    house,    have   sex,    and    watch

pornography.

             When Saldaña arrived at the location where he thought he

would be meeting an eleven-year-old "JessiRiv," he instead met the

DHS agent and other law enforcement officials.                       After being

Mirandized     and   arrested,    Saldaña    told     the   officials   that    he

believed he had been communicating with an eleven-year-old girl

and that he had gone to the meeting location with the intent to

have sex with her.

             Saldaña was indicted with one count of attempted sexual

coercion and enticement of a minor, in violation of 18 U.S.C.

§ 2422(b).     He initially pleaded guilty before a magistrate judge,

but he withdrew his guilty plea before the district court accepted

the magistrate judge's report and recommendation.               After he moved

unsuccessfully to dismiss the indictment, the case went to trial

"solely," in Saldaña's words, "to preserve the legal ruling for

appellate review."

             At trial, the undercover DHS agent, another DHS agent,

and a Puerto Rico Police Department officer testified.                         The

government also presented screenshots of the conversations between

Saldaña and "JessiRiv."          As Saldaña acknowledges, "the evidence

and testimony of the witnesses went largely uncontested."                   At the

end of the government's case, Saldaña moved under Rule 29 for a




                                     - 3 -
judgment of acquittal, which the district court denied.          See Fed.

R. Crim. P. 29.

          The      jury   found    Saldaña      guilty     of   violating

section 2422(b).     The district court sentenced Saldaña to 120

months' imprisonment, the statutory minimum, to be followed by

fifteen years of supervised release.       Saldaña now appeals.

                                   II.

                                   A.

          The federal coercion-and-enticement-of-a-minor statute,

section 2422(b), provides:

     Whoever, using the mail or any facility or means of
     interstate   or   foreign   commerce, . . .   knowingly
     persuades, induces, entices, or coerces any individual
     who has not attained the age of 18 years, to engage in
     . . . any sexual activity for which any person can be
     charged with a criminal offense, or attempts to do so,
     shall be fined under this title and imprisoned not less
     than 10 years or for life.

18 U.S.C. § 2422(b).

          A conviction under section 2422(b) for attempting to

entice a minor to engage in sexual activity plainly requires that

the attempted sexual activity be activity "for which any person

can be charged with a [crime]."           Id.    And chargeable sexual

activity includes crimes defined by state law.           United States v.

Dwinells, 508 F.3d 63, 72 (1st Cir. 2007).           In this case, the

government asserted that the sexual activity that Saldaña sought




                                  - 4 -
could have been charged as a crime under Article 130 of the Puerto

Rico Penal Code, which states:

     [A]ny person who purposely, knowingly, or recklessly
     carries out . . . an oral/genital act or vaginal act or
     anal sexual penetration, whether genital, digital, or
     instrumental . . . if the victim at the time of the
     offense had not reached 16 years of age [shall be
     punished in accordance with the remainder of the Code].

See P.R. Laws Ann. tit. 33, § 5191(a).1

          Saldaña counters that, given the actual facts, he could

not have been charged under Article 130 because Article 130 only

criminalizes sex with an actual minor, and Puerto Rico law (he

says) does not criminalize an attempt to commit a crime where

success is factually impossible.         The government concedes the

former point and disputes the latter.         Neither party, though,

refers us to any Puerto Rican case law on the latter point.      And

it is not clear why Puerto Rico's attempt statute, which appears

to prohibit factual impossibility as a defense, would not apply to

Article 130.2   Regardless, for purposes of this appeal, we will

assume without deciding that Saldaña could not have been charged


     1 The statute is drafted in Spanish. Both parties agree on
this English translation, which mirrors the instruction the
district court gave to the jury.
     2 Puerto Rico law defines attempt as existing "when the person

acts with the purpose of producing the crime or with knowledge
that the crime would be produced, and the person performs
unequivocal actions directed to the consummation of a crime that
it is not consummated due to circumstances not of its own will."
P.R. Laws Ann. tit. 33, § 5048. We rely on a certified English
translation that the government submitted to the district court
and was included in the appendix on appeal.


                                 - 5 -
with any crime under Article 130 because he was not communicating

with a minor.

           This    assumption     nevertheless         does    not    provide    the

exculpation     Saldaña    seeks.         Nothing      in     the     language   of

section 2422(b)    requires      the    government     to     show   that   Saldaña

himself   could   have    been   charged       under   Article 130.         Rather,

criminal liability arises under section 2422(b) if a defendant

"attempts" "to engage in any sexual activity for which any person

can be charged."    We therefore look to Commonwealth law not to see

if Saldaña could have been charged under that law, but rather to

see if any adult who engages in the sexual activity in which

Saldaña attempted to engage could be charged.                       Answering this

question requires that we pick the proper perspective for defining

the "sexual activity" in which Saldaña sought to engage.                     Do we

assay the facts objectively, as they actually existed?                      If so,

then one could say that, in fact, Saldaña was seeking to have sex

with an adult Homeland Security agent.             Or do we define the facts

subjectively, from Saldaña's perspective?              If so, then clearly he

was attempting to have sex with a child, an activity plainly

prohibited by Puerto Rico law. Two reasons point to the subjective

perspective.




                                       - 6 -
          First, "attempt" crimes under federal law3 train our

attention on the defendant's "intention to commit the substantive

offense." United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011)

(citing United States v. Burgos, 254 F.3d 8, 12 (1st Cir. 2001)).

          Second, while conviction for an attempted offense under

federal law also requires evidence that the defendant in fact took

a "substantial step towards" the commission of the offenses (here,

for example, going to the assigned meeting), id., we have rejected

factual impossibility as a defense to an attempt crime, albeit in

the context of a different substantive offense, see United States

v. Dixon, 449 F.3d 194, 201-202 (1st Cir. 2006) (holding that

factual impossibility is not a defense against liability for

attempted use of the mails to deliver a communication containing

a threat to injure the addressee); United States v. Mehanna, 735

F.3d 32, 53 (1st Cir. 2013).    We see no reason not to take the

same position in connection with this particular attempt crime.

And our sister circuits have so far, without exception, taken just

such a position in refusing to read section 2422(b) as requiring

the government to prove that the attempt could in fact have

resulted in unlawful sexual activity with a minor.      See United

States v. Tykarsky, 446 F.3d 458, 465-69 (3d Cir. 2006) (so holding


     3 There is no general federal "attempt" crime, but federal
law criminalizes the attempt of many specific crimes, including
section 2422(b). See, e.g., 21 U.S.C. § 846 (drugs); 18 U.S.C.
§ 1113 (murder/manslaughter); 18 U.S.C. § 1349 (fraud).


                               - 7 -
and collecting cases); see also United States v. Jockisch, 857

F.3d 1122, 1129 (11th Cir.), cert. denied, 138 S. Ct. 284 (2017);

United States v. Hart, 635 F.3d 850, 855 (6th Cir. 2011); United

States v. Mannava, 565 F.3d 412, 416 (7th Cir. 2009); United States

v. Gagliardi, 506 F.3d 140, 145-147 (2d Cir. 2007); United States

v. Helder, 452 F.3d 751, 753-56 (8th Cir. 2006); United States v.

Sims, 428 F.3d 945, 959-60 (10th Cir. 2005); United States v. Meek,

366 F.3d 705, 717-720 (9th Cir. 2004); United States v. Farner,

251 F.3d 510, 513 (5th Cir. 2001).4

             Saldaña points out that in several instances federal

courts have upheld convictions under section 2422(b) by pointing

out   that   the   applicable   state   law   (unlike,   we   assume,   the

Commonwealth's law) criminalized not just the act of having sex

with a minor, but also the attempt to do so.        See, e.g., Mannava,

565 F.3d at 416; United States v. Kaye, 243 Fed. Appx. 763, 766

(4th Cir. 2007).       Saldaña would have us read these cases as

implying that the result would have been different in those cases

had the applicable state law not itself criminalized attempts.          We




      4As some of our sister courts have acknowledged, holding
otherwise would prevent law enforcement from using sting
operations and decoys to police the criminal coercion and
persuasion of minors for sex. See, e.g., Gagliardi, 506 F.3d at
146-47; Tykarsky, 446 F.3d at 468; Meek, 366 F.3d at 719. These
common practices have led to convictions that we have upheld. See,
e.g., United States v. Hinkel, 837 F.3d 111, 115-16 (1st Cir.
2016), cert. denied, 137 S. Ct. 1106 (2017); United States v.
Dwinells, 508 F.3d 63, 65-67 (1st Cir. 2007).


                                  - 8 -
disagree.    The courts in those cases chose to rest on obviously

sufficient grounds for affirmance without suggesting that other

grounds were also not available.       And this is not an issue upon

which a court would likely rule only by implication bereft of any

analysis and against the unanimous weight of authority.      Saldaña

also cites United States v. Tello, 600 F.3d 1161 (9th Cir. 2010),

but in that case the court actually confirmed (though without

relevant discussion) a conviction under section 2422(b) for a

similar, factually impossible attempt.

            Having read the statutory text and surveyed the case

law, including the comprehensive analysis set forth in Tykarsky,

we see no reason to chart a minority path.       The sexual activity

attempted by Saldaña was sex with an eleven-year-old girl; and sex

with an eleven-year-old girl is sexual activity for which he could

have been charged with a crime under Puerto Rico law. The district

court therefore did not err in denying Saldaña's Rule 29 motion

for a judgment of acquittal.

                                III.

            Saldaña challenges the jury instructions on two grounds.

His first argument -- that the district court erred by failing to

instruct the jury that an actual minor was required to convict

under section 2422(b) -- fails for the reasons discussed above.

            Saldaña's second argument arises out of the fact that

section 2422(b) requires that the sexual activity the defendant


                                - 9 -
sought to bring about be "sexual activity for which any person can

be charged with a criminal offense."                 One might literally read

that language as including suspicious but nevertheless lawful

conduct that might furnish probable cause for an indictment.                   See

Mannava,       565   F.3d      at    416      ("Indeed,       read    literally,

[section 2422(b)] would make it a federal offense to engage in

conduct that created only probable cause to think that one had

committed a criminal offense, since probable cause is all that is

required to charge someone with an offense.").                For example, there

might    be    probable     cause   to     indict     under   Article 130,     but

insufficient evidence to convict, a defendant who plausibly claims

that his sexually explicit, coercive messages to a minor were the

result   of    intimidation    or   violence        sufficient   to   negate   the

requisite criminal intent.          See P.R. Laws Ann. tit. 33, § 5045

(listing exclusions from criminal liability).                 Not surprisingly,

the Seventh Circuit has eschewed this arguably literal reading of

section 2422(b).      See Mannava, 565 F.3d at 416 ("That would be a

good example of an interpretation that, though literally correct

-- though dictated by 'plain meaning' -- was absurd, and therefore

erroneous.").

              In this case, the district court pretty much tracked the

statutory language literally when instructing the jurors on the




                                     - 10 -
government's burden.5 That normally quite prudent approach created

a risk with this particular statute that jurors might construe the

language as requiring only that the sexual activity be chargeable

rather than criminally unlawful.       The accompanying instructions

routinely given in federal criminal trials can increase this risk.

Such instructions often warn jurors not to place weight on the

fact that the government indicted the defendant for the federal

offense being tried. The court will explain (as in this very case)

that there only need be "probable cause," a "very low standard of

proof," to justify "a charge."       So one can see how jurors might

piece together the wrong conclusion that the facts concerning the

nature of the attempted sexual activity need only provide probable

cause to support a charge under Article 130.     All in all, this is

one of those unusual instances in which a paraphrase of the statute

-- as requiring that the sexual activity be a crime -- would have

been far preferable.   See, e.g., Nancy Torresen, 2018 Revisions to

Pattern Criminal Jury Instructions for the District Courts of the

First Circuit (2018), http://www.med.uscourts.gov/pdf/crpjilinks.pdf




5   The district court instructed:

       For the government to prove Mr. Saldaña guilty of this
       crime and for you to find that the government proved
       this case beyond a reasonable doubt the United States
       must prove . . . that if a sexual activity had occurred
       Mr. Saldaña could have been charged with a criminal
       offense under the laws of the United States and Puerto
       Rico.


                               - 11 -
(tracking the statute but then instructing that jurors must find

beyond a reasonable doubt "that the sexual activity was a criminal

offense");    Pattern    Criminal     Jury    Instructions    of     the    Seventh

Circuit 630 (2012 ed.), http://www.ca7.uscourts.gov/pattern-jury-

instructions/7th_criminal_jury_instr.doc (instructing that, "if

the sexual activity had occurred," the defendant "would have

committed the criminal offense"); see also United States v. Lundy,

676 F.3d 444, 450-51 (5th Cir. 2012) (affirming the instruction

that the government must prove that the defendant "attempted to

persuade, induce or entice a minor to engage in some form of

unlawful sexual activity" (emphasis added)).

             Saldaña, though, did not object to the district court's

instruction,    likely    because     his    lawyer   did   not    construe    the

instruction in the arguably literal -- but incorrect -- manner we

acknowledge could be possible.         So we review this whole issue only

for plain error, which requires among other things that there be

clear   error   that     "affected    [Saldaña's]      substantial         rights."

United States v. Vicente, 909 F.3d 20, 23 (1st Cir. 2018) (quoting

United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).                      In

other words, he need "'show a reasonable probability that, but for

the   error,'   the    outcome   of    the    proceeding     would    have    been

different."     Molina-Martinez v. United States, 136 S. Ct. 1338,

1343 (2016) (quoting United States v. Dominguez Benitez, 542 U.S.

74, 76 (2004)).        Saldaña cannot make this showing because the


                                     - 12 -
evidence of his guilt was overwhelming.       He did not even contest

that he sought sex with an eleven-year-old.         And no juror could

reasonably construe such activity as anything other than unlawful

under Article 130.

                                  IV.

          For   the   foregoing    reasons,    we    affirm   Saldaña's

conviction under 18 U.S.C. § 2422(b).




                              - 13 -
