     Case: 10-30382 Document: 00511477096 Page: 1 Date Filed: 05/13/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 13, 2011
                                     No. 10-30382
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KEVIN RAY,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 6:09-CR-103-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Kevin Ray appeals his conviction and sentence for attempting to entice a
minor to engage in criminal sexual activity and attempting to produce child
pornography in violation of 18 U.S.C. §§ 2422(b) and 2251(a). Ray was sentenced
to concurrent terms of 151 months of imprisonment and 10 years of supervised
release on count one and 180 months of imprisonment and 10 years of
supervised release on count two.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-30382 Document: 00511477096 Page: 2 Date Filed: 05/13/2011

                                  No. 10-30382

      Ray argues that it was legally impossible for him to have committed the
charged offenses because the purported minor was actually an undercover adult
agent. We rejected this argument in United States v. Farner, 251 F.3d 510 (5th
Cir. 2001), explaining that the legal impossibility defense does not apply when
the defendant’s scheme would be an offense “if fully carried out as he ‘desired’
or ‘planned,’” even if that plan is mistaken about the facts. See id. at 513.
      Ray also asserts that he never believed the purported minor was actually
a minor. The Government presented evidence that the purported minor stated
in the chat sessions she was 15 years old; that Ray stated in the chat sessions
that he would get in trouble because of her age; and that Ray stated after his
arrest that he had gone to the park to meet the minor to warn her of the dangers
of meeting strangers on the internet, a concern he stated he would not have had
if he thought the minor was an adult. By finding Ray guilty, the jury resolved
this issue against him.
      Ray’s argument that the sentence was greater that necessary to achieve
the sentencing goals of 18 U.S.C. § 3553 is also unavailing. Ray could not have
been sentenced below the mandatory minimum penalties of 120 months for
count one or 180 months for count two. See 18 U.S.C. §§ 2422(b), 2251(e); see
also United States v. Krumnow, 476 F.3d 294, 297 (5th Cir. 2007). To the extent
Ray argues that the district court abused its discretion by not departing
downward to 120 months of imprisonment for count one, he has not rebutted the
presumption of reasonableness that applies to his 151-month guidelines
sentence. See, e.g., United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009),
cert. denied, 130 S. Ct. 1930 (2010).
      The judgment of the district court is AFFIRMED.




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