                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             OCT 25 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-10489

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00001-LRH-
                                                 PAL-1
  v.

DAVID MARK ERICKSON,                             MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                     Argued and Submitted October 11, 2013
                           San Francisco, California

Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.

       David Erickson (“Erickson”) appeals his jury trial conviction and mandatory

minimum ten-year sentence for attempting to persuade, induce, or entice a minor in

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

violation of 18 U.S.C. § 2422(b). We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Erickson argues the jury’s general verdict must be overturned because the

prosecutor in closing argument misstated that certain acts by Erickson, when taken

alone, could fulfill the “substantial step” element of a § 2422(b) attempt conviction.

Defense counsel made no contemporaneous objection to these statements and we

therefore review them for plain error. United States v. Brown, 327 F.3d 867, 871 (9th

Cir. 2003) (“[C]omments for which no objection is made are reviewed for plain error.”

(citing United States v. Sanchez, 176 F.3d 1214, 1218 (9th Cir.1999), and United

States v. de Cruz, 82 F.3d 856, 861 (9th Cir. 1996))).

      While the prosecutor’s statements may have been incorrect, any resulting

prejudice likely did not materially affect the verdict, nor did it result in a miscarriage

of justice. “We will overturn a conviction because of statements in closing arguments

for plain error only where the statement undermine[s] the fundamental fairness of the

trial and contribute[s] to a miscarriage of justice.” United States v. Del Toro-Barboza,

673 F.3d 1136, 1152 (9th Cir. 2012) (internal citations and quotation marks omitted).

The prejudicial nature of these statements must be considered in the context of the

whole case. See United States v. Segna, 555 F.2d 226, 231 (9th Cir. 1977). “If the

probability is high that the error materially affected [the jury’s] verdict, reversal may

be justified.” Id.




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      Here, the prosecutor presented evidence to prove that Erickson did in fact take

substantial steps, including arranging for multiple meetings and showing up at the

meeting location. See United States v. Hofus, 598 F.3d 1171, 1175 (9th Cir. 2010)

(commenting that given the defendant’s telephone communications with the girls and

travel to a prearranged meeting place, “[t]here was unlikely to be any confusion about

‘substantial step’ on the facts of this case”). The court also gave a proper jury

instruction on the substantial step element of the offense before the prosecutor’s

statements and a curative instruction after them.

      Erickson argues that we must reverse under United States v. Barona, 56 F.3d

1087 (9th Cir. 1995). In Barona, the court reversed the appellants’ convictions under

21 U.S.C. § 848, a crime which required them to be “supervisors.” Id. at 1096. The

government suggested a list of possible “supervisees” to the jury, including

individuals who could not legally qualify as such. Id. The “jury [had] received an

instruction that followed the language” of the statute but it was not instructed that a

supervisee cannot be “one who is only a customer.” Id. at 1097-98. Absent additional

assurances “that proper differentiation could be made,” the court reversed the

convictions. Id. at 1098.

      Unlike Barona, the district court here in its jury instructions went beyond

simply following the language of § 2422(b). Instead, the court elaborated on the


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difference between preparation and substantial step and instructed that in order to

constitute a substantial step, “a defendant’s act or actions must demonstrate that the

crime will take place unless interrupted by independent circumstances.” The court

then reiterated to the jury after the prosecutor’s statements that it was to follow the

court’s instructions only. Applying plain error standards, we affirm Erickson’s

conviction.

      As it was required to do, the district court imposed a mandatory minimum ten-

year sentence. Erickson argues this constituted cruel and unusual punishment in

violation of the Eighth Amendment as applied to him. We must first make “a

threshold comparison of the crime committed and the sentence imposed” and “[i]n the

rare case in which [this] leads to an inference of gross disproportionality, we then

compare the sentence at issue with sentences imposed for analogous crimes.” United

States v. Meiners, 485 F.3d 1211, 1213 (9th Cir. 2007) (per curiam) (internal

quotation marks and citations omitted). In doing so, “we must grant ‘substantial

deference to the broad authority that legislatures . . . possess in determining the types

and limits of punishments for crimes[.]’” United States v. Savinovich, 845 F.2d 834,

840 (9th Cir. 1988) (citing Solem v. Helm, 463 U.S. 277, 290 (1983)).

      Erickson argues further that his sentence is unconstitutional based on the

relatively marginal nature of his case, the lack of a true victim, and his personal


                                           4
history and characteristics. Although this mandatory minimum ten-year sentence is

undoubtedly harsh as applied to him, these factors do not make it grossly

disproportionate under the Eighth Amendment. See United States v. Hughes, 632 F.3d

956, 958-60 (6th Cir. 2011) (mandatory ten-year sentence for § 2422(b) attempt

conviction not grossly disproportionate under Eighth Amendment where defendant

had no serious criminal history and there was no actual minor victim); see also Ewing

v. California, 538 U.S. 11, 30-31 (2003) (twenty-five-year-to-life sentence under

California’s three strikes law for third strike of stealing three golf clubs not grossly

disproportionate); Meiners, 485 F.3d at 1212 (fifteen-year sentence not grossly

disproportionate to child pornography offenses). We therefore need not compare

Erickson’s sentence with sentences imposed for analogous crimes.

      AFFIRMED.




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