                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4801


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

FRANESIOUR B. KEMACHE-WEBSTER, a/k/a Bryan Webster,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:10-
cr-00654-RWT-1)


Argued:   October 26, 2012              Decided:   November 28, 2012


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: David Warren Lease, SMITH, LEASE & GOLDSTEIN, LLC,
Rockville, Maryland, for Appellant.  Jonathan Biran, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, LisaMarie Freitas, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       A    federal       jury       convicted             Franesiour         Kemache-Webster           of

enticing         a    minor     to    engage          in     illegal          sexual    activity        in

violation         of    18    U.S.C.        §    2422(b),           and       the    district        court

sentenced him to life imprisonment.                            Kemache-Webster now appeals

both       his       conviction       and       sentence.             With           regard     to     his

conviction, he contends that the district court (1) erred by

denying      his       motion    for     acquittal            based       on        insufficiency      of

evidence         and    (b)     abused          its        discretion         by     making     several

evidentiary           rulings.        With       regard        to    his       sentence,      Kemache-

Webster claims both procedural and substantive errors and asks

this Court to vacate it.                 Finding no merit in these contentions,

we affirm.



                                                      I.

       In late 2008, Kemache-Webster’s daughter “Nikki,” who was

14 years old and had been living with her mother, came to live

with Kemache-Webster in Washington, D.C.                              Nikki lived there with

Kemache-Webster until March 2010 when Kemache-Webster went to

federal      prison      in     Illinois         for        writing       a    bad     check.         Soon

thereafter, Nikki moved back in with her mother in Maryland.

       From prison, Kemache-Webster sent Nikki emails and letters

and placed telephone calls to her that                                    revealed       (in graphic

detail)      that       Kemache-Webster                and     Nikki          had     maintained       an

                                                      2
incestuous relationship while she was living with him.                               The

communications indicated that Kemache-Webster intended for the

relationship to continue after his incarceration and that he

even intended to marry Nikki and conceive children with her, the

first     of   which    would       be    named       Ne’Vaeh    (“Heaven”    spelled

backwards).     Kemache-Webster also sent Nikki a detailed plan for

their     reunion,     which    was       to       occur   immediately     after     his

anticipated release in 2010.                   This plan specified that Nikki

would meet him at a bus station in Washington, D.C., from which

they would go to a nearby hotel where “every thought, idea, and

desired    position     [would]      be    acted       upon,    assisted   and     fully

accomplished.”       (J.A. 429.)

    Nikki      responded       to    Kemache-Webster’s           communications       in

kind.     For example, a July 27, 2010 letter from Kemache-Webster

to Nikki referenced recent comments from Nikki as follows: “Now

as for Ne’Vaeh . . . it sounded like when we last spoke openly

and by a letter I got from you on Monday . . . that you are

really wanting to get pregnant this year . . . as soon as I am

home and we are settled.”                (S.S.A. 013.)1         But the plan never


    1
       This letter was included in the original Joint Appendix,
but the copy quality made it illegible. The government included
a legible copy in a proposed Second Supplemental Appendix.
Kemache-Webster opposed the government’s request for leave to
file much of the material in the Second Supplemental Appendix,
but he did not oppose the government’s request to replace
illegible copies with legible ones.    Therefore, we grant the
(Continued)
                                               3
materialized because Kemache-Webster never got out of prison.

Instead, prior to his release, the government discovered these

communications and indicted him on one count of enticing a minor

to engage in unlawful sexual activity under 18 U.S.C. § 2422(b).

      The case proceeded to a three-day jury trial in April 2011,

which concluded with a guilty verdict.                    Several months later,

following     a     sentencing    hearing,       the   district   court     sentenced

Kemache-Webster to life imprisonment.



                                           II.

      We     turn    now     to   Kemache-Webster’s          contention    that   the

district court erred by denying his motion for acquittal.                         The

motions challenged the sufficiency of the evidence.                        We review

challenges to the sufficiency of the evidence de novo, United

States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005), and we must

sustain the verdict if there is substantial evidence, viewed in

the   light    most    favorable     to    the    government,     to    support   it.

Burks   v.    United       States,   437   U.S.    1,   17    (1978).     Substantial




government’s request for leave to file the portions of the
Second Supplemental Appendix that are merely legible copies of
exhibits included in the prior Joint Appendices.       Since the
other material in the proposed Second Supplemental Appendix does
not affect our analysis of any issue in this appeal, we deny the
government’s request to file those portions of the Second
Supplemental Appendix.


                                            4
evidence is evidence that a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of

guilt beyond a reasonable doubt. Alerre, 430 F.3d at 693. A

defendant    bringing   a   sufficiency    challenge       “must     overcome   a

heavy burden,” United States v. Hoyte, 51 F.3d 1239, 1245 (4th

Cir. 1995), and reversal for insufficiency must “be confined to

cases where the prosecution's failure is clear.” Burks, 437 U.S.

at 17.    Here we find that the evidence was sufficient to support

Kemache-Webster’s conviction.

    18    U.S.C.    §   2422(b)    makes   it    illegal    to       “knowingly

persuade[],     induce[],   entice[],      or   coerce[]       any   individual

[under 18] to engage in . . . sexual activity for which any

person can be charged with a criminal offense, or attempt[] to

do so.”     18 U.S.C. § 2422(b).2    Thus, there are two prongs to the

statute, one for a completed violation and the other for an

attempted    violation.     Both    parties     here   agree     that   Kemache-

Webster was convicted of a completed violation.




    2
        The statute does not define the words “persuade,”
“induce,” “entice,” or “coerce.” Therefore, we give them their
ordinary meaning.    At least as they apply to this case, the
words are essentially synonymous, and “the idea conveyed is of
one person leading or moving another . . . as to some action
[or] state of mind.” United States v. Engle, 676 F.3d 405, 412
n.3 (4th Cir. 2012) (quoting United States v. Broxmeyer, 616
F.3d 120, 125 (2d. Cir. 2010)).     In this opinion we will use
“entice” as shorthand for the collection of these four verbs.


                                      5
       In Engle, we explained that the attempt prong “criminalizes

an   intentional      attempt     to     achieve    a    mental     state—a    minor’s

assent.”      Engle, 676 F.3d at 419 (quoting U.S. v. Burk, 652 F.3d

132, 140 (1st Cir. 2011)).               From that holding, it follows that

the completed violation prong criminalizes a successful attempt

to achieve the victim’s assent.                Therefore, to prove a completed

violation of the statute, the government must show that the

minor actually assented to the illegal sexual activity, but the

completion of the act assented to is not required.                         Thus, it is

irrelevant whether the defendant and the minor have sex because

the crime is complete when the minor assents.

       On appeal, Kemache-Webster contends that the district court

should have granted his motions for acquittal since the evidence

against him was insufficient in two ways.                      First, he contends

that there was insufficient evidence to support a conclusion

that Nikki gave her assent to engage in illegal sexual acts with

him.    And, Kemache-Webster argues, since the district court only

charged    the    jury    on    the    completed        violation    prong     of   the

statute,    not   the    attempt       prong,    the    jury   could    not    convict

without    evidence      of    Nikki’s    assent.        Second,    Kemache-Webster

contends that the jury could not have found that the sexual

activity Kemache-Webster proposed to Nikki was illegal since the

evidence showed that the activity was to occur in Washington,

D.C.,   and    the   district     court     only    instructed       the    jury    that

                                           6
incest   was     illegal      in    Maryland.         We   address    these   two

contentions in turn.

                                           A.

     Kemache-Webster’s             first        contention—that      there    was

insufficient evidence to support a finding that Nikki gave her

assent—is incorrect.          Kemache-Webster’s letter to Nikki stating

that “it sounded like          . . .        you are    really wanting to get

pregnant this year . . . as soon as I am home and we are

settled” supports the inference that Nikki gave her assent by

telling her father that she intended to resume their incestuous

relationship     and   bear    his    child.        (S.S.A.   013.)     Thus,   a

reasonable jury could conclude that Kemache-Webster “enticed”

Nikki as required for a conviction under 18 U.S.C. § 2422(b).

                                           B.

     Kemache-Webster next contends the district court improperly

charged the jury by instructing them on the law of incest from

Maryland.3      The district court charged the law of incest from

Maryland.      Kemache-Webster did not object to the charge, but he

now asserts that the law of Washington, D.C., should have been

charged because the evidence at trial included specific plans

for post-incarceration sex in Washington, D.C., but no specific

     3
       Although Kemache-Webster claims he is appealing the denial
of his motion for acquittal, he is actually challenging the
district court’s jury charge.


                                           7
plans to have sex in Maryland.                Because Kemache-Webster did not

object to the jury instruction at trial, we review for plain

error.    See Fed.R.Civ.P. 51(d)(2) (“A court may consider a plain

error in the instructions that has not been preserved . . . if

the error affects substantial rights.”). Applying plain error

review,    we    will        not   reverse      unless     Kemache-Webster        can

establish: “(1) there is an error; (2) the error is plain; (3)

the   error     affects       substantial      rights;     and     (4)   the    court

determines . . . that the error seriously affects the fairness,

integrity or public reputation of judicial proceedings.” In re

Celotex Corp., 124 F.3d 619, 630–31 (4th Cir. 1997).                       Kemache-

Webster cannot satisfy this standard.

      First,    even    if    we   assume     error   in   charging      the   proper

substantive law on illegal sexual activity, it is not clear that

such an error is plain.            The law of Maryland could be just as

appropriate as the law of Washington, D.C., because the jury

could have found that the enticing was completed in Maryland or

that Nikki had given her assent to a sexual relationship that

would have included sex in Maryland, where she lived when she

gave her assent.        Further, we find no plain error here because

Kemache-Webster        cannot      show     that   the     error     affected     his

substantive rights since incest is illegal in Washington, D.C.,

just as it is in Maryland.           D.C. St. §22-1901.

      For these reasons, we reject Kemache-Webster’s contention.

                                          8
                                          III.

      Kemache-Webster also contends that the district court made

three erroneous evidentiary rulings, which we review for abuse

of discretion.       United States v. Johnson, 617 F.3d 286, 292 (4th

Cir. 2010).        First, Kemache-Webster contends that the district

court abused its discretion by allowing the government to redact

some benign portions of written correspondence between Kemache-

Webster and Nikki, finding that the redacted portions provided

no    meaningful         context     to   the     admitted       portions        of   the

correspondence.            Second,    Kemache-Webster           contends     that     the

district court abused its discretion by refusing to allow him to

introduce evidence of Nikki’s alleged behavioral problems, which

would have supported his claim that he was communicating with

Nikki as a sexual partner in an attempt to gain her trust in

order to help remedy those behavioral problems.                        On this point,

the     district     court    ruled       that    Nikki’s       alleged     behavioral

problems were not relevant to any issue that the jury needed to

decide.     Third, Kemache-Webster contends that the district court

abused its discretion by allowing a government investigator to

provide     lay     opinion    testimony,         based    upon       his   review     of

communications       between       Kemache-Webster        and   Nikki,      as   to   the

meaning of certain “code” words that Kemache-Webster and Nikki

used to refer to their body parts.                    Here, the district court

found     that     the    investigator’s         testimony      was    admissible      as

                                           9
opinion testimony that was based on the inspector’s personal

review of hundreds of emails between Kemache-Webster and Nikki.

Having considered Kemache-Webster’s arguments and reviewed each

of the district court’s challenged rulings, we find no abuse of

discretion.



                                         IV.

      Finally,       Kemache-Webster         challenges      his     sentence.         In

reviewing     any     sentence,     “whether         inside,    just      outside,     or

significantly        outside     the    Guidelines          range,”     we    apply     a

“deferential        abuse-of-discretion           standard.”       Gall      v.   United

States, 552 U.S. 38, 41 (2007).                  We first must “ensure that the

district court committed no significant procedural error.” Id.

at   51.   “If,     and   only   if,   we    find     the   sentence      procedurally

reasonable can we ‘consider the substantive reasonableness of

the sentence imposed under an abuse-of-discretion standard.’”

United     States    v.   Carter,      564    F.3d    325,     328    (4th    Cir.2009)

(quoting Gall, 552 U.S. at 51).

      On appeal, Kemache-Webster contends that his sentence is

both procedurally and substantively unreasonable.                          As for the

procedural        challenges,      Kemache-Webster           contends        that     the

district court (1) disregarded the Sentencing Guidelines, (2)




                                            10
relied on unproven facts and uncharged conduct,4 and (3) failed

to   explain     and     apply   the    factors         set    forth    in     18   U.S.C.   §

3553(a).       We have considered these contentions and find them to

be meritless.         In fact, the record makes clear that the district

court      relied   on    the    Sentencing        Guidelines          to     calculate   the

sentencing range and then considered the appropriateness of that

range in light of the § 3553(a) factors.                              Moreover, Kemache-

Webster offers no basis for concluding that the district court

considered facts that were not supported by ample evidence.

       With regard to the substantive challenges, Kemache-Webster

primarily contends that the district court abused its discretion

by imposing a sentence for enticement of incest that was greater

than       Maryland’s     penalty      for    actual          incest.         However,     the

district      court      noted   numerous         reasons       for     imposing     a    life

sentence, including Kemache-Webster’s criminal history, attempts

to     circumvent        court    orders,         and     failure        to     accept     the

seriousness of his crime.               Therefore, we do not find that the

length of this sentence represented an abuse of discretion.




       4
        Kemache-Webster also makes a related argument that
allowing   judge-found  facts   to   serve  as   the  basis  for
enhancements to his sentence deprives him of his constitutional
right to a jury trial.    Kemache-Webster correctly notes that a
panel of this Court has already rejected this argument.      See
United States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009).


                                             11
                                 V.

    For   the   foregoing   reasons,   we   affirm   Kemache-Webster’s

conviction and sentence.

                                                              AFFIRMED




                                 12
