     Case: 16-11526      Document: 00514084318         Page: 1    Date Filed: 07/21/2017




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

                                    No. 16-11526                                 FILED
                                  Summary Calendar                           July 21, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ADNAN SHAHZAD,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-94-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Adnan Shahzad has appealed his jury conviction of enticement of a child
in violation of 18 U.S.C. § 2422(b). Shahzad’s arrest resulted from an Internet
sting operation in which an officer posed as a 13-year-old girl. The superseding
indictment alleged that Shahzad’s criminal conduct, if successful, would have
constituted a violation of Texas Penal Code § 22.011, which criminalizes sexual
assault of a child younger than age 17.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11526    Document: 00514084318     Page: 2   Date Filed: 07/21/2017


                                 No. 16-11526

      Shahzad contends that the superseding indictment narrowed the scope
of Section 2422(b) by alleging that the would-be victim was age 13 and that it
was constructively amended by the trial court’s instructions and by the
Government’s arguments, which permitted conviction on the basis of a finding
that the victim was younger than age 17. As Shahzad concedes, our review is
for plain error because he failed to object that the indictment had been
constructively amended. See United States v. Bohuchot, 625 F.3d 892, 897 (5th
Cir. 2010).
      “[N]o constructive amendment arises where the evidence proves facts
different from those alleged in the indictment, but does not modify an essential
element of the charged offense.” United States v. Munoz, 150 F.3d 401, 417
(5th Cir. 1998). It made no difference whether the would-be victim was age 13
or some other age, as long as the Government proved that Shahzad believed
she was younger than age 17. See § 22.011(a) & (c)(1); § 2422(b). There was
ample evidence of such belief. Because there was no error, plain or otherwise,
it was not professionally unreasonable for counsel not to lodge an objection.
See Strickland v. Washington, 466 U.S. 668, 688 (1984).
      Shahzad contends that the state statute did not provide federal
jurisdiction for the Section 2422(b) charge. The difference between the age
thresholds in the two statutes merely narrows the applicability of the federal
statute to the age range proscribed by state law and does not create an
irreconcilable conflict between the two statutes.         The district court’s
jurisdiction was established by showing that Shahzad used facilities of
interstate commerce, that is, a cellular telephone and a computer connected to
the Internet. See § 2422(b); United States v. Barlow, 568 F.3d 215, 220–21 (5th
Cir. 2009); see also United States v. Lopez, 514 U.S. 549, 559 (1995). The
judgment is AFFIRMED.



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