     Case: 18-40609       Document: 00514873963         Page: 1     Date Filed: 03/14/2019




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

                                                                                     FILED
                                     No. 18-40609                              March 14, 2019
                                   Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

WILLIAM CRAIG WHISMAN,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:16-CR-173-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       A jury convicted William Craig Whisman of attempted coercion and
enticement of a minor, in violation of 18 U.S.C. § 2422(b), and possession,
receipt, and distribution of child pornography, in violation of 18 U.S.C.
§§ 2252A(a), (b).        Whisman challenges only his attempted-enticement
conviction and related 292-month, within-Sentencing Guidelines sentence.
(Accordingly, he has waived any challenge to his child-pornography convictions


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-40609     Document: 00514873963       Page: 2   Date Filed: 03/14/2019


                                   No. 18-40609

and sentences. E.g., Brinkmann v. Dall. Cty. Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).)
      Whisman presents three issues; none, however, was preserved in district
court. Therefore, review of each issue is only for plain error. E.g., United
States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard,
Whisman must show a forfeited plain (clear or obvious) error that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
does so, we have the discretion to correct the reversible plain error, but should
do so only if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings”. Id. For the following reasons, each claim fails.
      Whisman first contends that there is insufficient evidence to support his
attempted-enticement conviction. (Arguably, he, in reality, challenges the
underlying jury instruction, to which he did not object. In any event, the result
is the same on either basis.)
      The relevant statute, 18 U.S.C. § 2422(b), proscribes “knowingly
persuad[ing], induc[ing], entic[ing], or coerc[ing] any individual who has not
attained the age of 18 years, to engage in prostitution or any sexual activity for
which any person can be charged with a criminal offense, or attempts to do so
. . .”. 18 U.S.C. § 2422(b) (emphasis added). Whisman asserts that, properly
construed, the italicized language requires the putative offense to be federal,
whereas the jury was instructed to find only whether he could have been
charged with an offense under Texas law.
      As noted, Whisman did not preserve this sufficiency challenge in district
court. And, for there to be plain (clear or obvious) error for such a challenge,
there must have been a “manifest miscarriage of justice”. United States v.
Phillips, 477 F.3d 215, 219 (5th Cir. 2007) (internal quotation marks and
citation omitted). Injustice will be manifest “only where the record is devoid of



                                         2
    Case: 18-40609     Document: 00514873963     Page: 3   Date Filed: 03/14/2019


                                  No. 18-40609

evidence pointing to guilt or contains evidence on a key element of the offense
that is so tenuous that a conviction would be shocking”. United States v.
Vasquez, 766 F.3d 373, 377 (5th Cir. 2014) (internal quotation marks and
citation omitted). “[S]ome evidence” on the disputed element “is all that is
needed to affirm the conviction under [plain-error] review”. United States v.
Delgado, 672 F.3d 320, 328 n.4 (5th Cir. 2012) (emphasis in original).
      Whisman cites no authority from this, or any other, circuit interpreting
§ 2422(b) to require the putative offense be federal in nature. A “lack of binding
authority is often dispositive in the plain-error context”. United States v.
Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015). To the contrary, our court has
expressly noted § 2422(b) may be satisfied by evidence that defendant
attempted to engage in conduct for which “he could have been charged with a
criminal offense under Texas law”. United States v. Rounds, 749 F.3d 326, 333
(5th Cir. 2014). Similarly, our court has consistently affirmed the sufficiency
of the evidence supporting § 2422(b) convictions where defendant’s putative
conduct was chargeable under state law. See, e.g., United States v. Howard,
766 F.3d 414, 415 n.1 (5th Cir. 2014); United States v. Lundy, 676 F.3d 444,
448–49 (5th Cir. 2012); Broussard, 669 F.3d at 546–51.
      Consequently, Whisman does not demonstrate the requisite clear or
obvious error regarding the district court’s interpretation of § 2422(b).
Furthermore, he does not contest the evidence that his putative conduct would
be chargeable under Texas law, or that the Government’s evidence to that end
was so tenuous as to render his resulting conviction shocking. See Vasquez,
766 F.3d at 377; United States v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010).
Whisman fails to show his § 2422(b) conviction is manifestly unjust. See
Phillips, 477 F.3d at 219. Therefore, there was no clear or obvious error.




                                        3
    Case: 18-40609    Document: 00514873963     Page: 4   Date Filed: 03/14/2019


                                 No. 18-40609

      Whisman next asserts the court erred by failing to instruct jurors they
must unanimously agree on which Texas offense—aggravated sexual assault
or indecency with a child—he could have been charged, based on his putative
conduct. As noted, because he did not object in district court to the jury
instruction, review of this issue is also for plain error. E.g., Broussard, 669
F.3d at 546.
      Whisman cites no binding precedent requiring the unanimity instruction
urged by him to be given in a prosecution under § 2422(b). See Gonzalez,
792 F.3d at 538. Therefore, as discussed supra, he cannot show the requisite
clear or obvious error. See Puckett, 556 U.S. at 135.
      Finally, Whisman contends the court erroneously applied a two-level
sentence enhancement under Guideline § 2G1.3(b)(3)(B) (using computer or
interactive computer service to facilitate offense) because subsection (B)
applies only when defendant induces a third party to engage in sexual acts
with a minor. Again, review is only for plain error.
      As discussed infra, there was plain error in applying subsection (B). See
United States v. Pringler, 765 F.3d 445, 452–53 (5th Cir. 2014). But, Whisman
fails to show the error affected his substantial rights because, insofar as he
used a computer or interactive computer service to facilitate his own sexual
encounter with the victim, he was subject to an identical, two-level
enhancement under Guideline § 2G1.3(b)(3)(A) (using computer to persuade
minor to engage in prohibited sexual conduct). See Puckett, 556 U.S. at 135.
By his own admission, Whisman electronically contacted the undercover
agent—posing as both the minor and father of the minor—“so that [Whisman]
could engage in sexual activity with the minor”. Subsection (b)(3)(A) applies
when defendant communicates “directly with a minor or with a person who
exercises custody, care, or supervisory control of the minor”. U.S.S.G. § 2G1.3



                                       4
    Case: 18-40609     Document: 00514873963      Page: 5   Date Filed: 03/14/2019


                                  No. 18-40609

app. n.4. Had Whisman “objected to the [presentence investigation report
(PSR)] on this ground, the probation officer could have merely revised the PSR
to cite the proper subsection”. United States v. Lay, 583 F.3d 436, 448 n.3 (6th
Cir. 2009).
      Further, at sentencing, the court found:              “[T]he [G]uideline[s]
calculations announced at the sentencing hearing to be correct, [but] to the
extent they were incorrectly calculated, the [c]ourt would have imposed the
same sentence without regard to the applicable [G]uideline[s] range, in [the]
light of the [sentencing] factors set forth in [18 U.S.C. § 3553(a)]”.
      In short, Whisman has not shown a reasonable probability that, but for
the district court’s error, he would have received the requisite lesser sentence.
See United States v. Davis, 602 F.3d 643, 650 (5th Cir. 2010).
      AFFIRMED.




                                        5
