USCA11 Case: 22-11718 Document: 57-1 Date Filed: 06/12/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11718
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER DAY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00354-SDM-JSS-1
____________________
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2 Opinion of the Court 22-11718
Before ROSENBAUM, JILL PRYOR, and BRASHER, Circuit Judges.
PER CURIAM:
Christopher Day traveled to Vietnam to sexually abuse chil-
dren. After facing charges for his predatory conduct, Day pleaded
guilty to two counts of traveling in foreign commerce with intent
to engage in illicit sexual activity in violation of
18 U.S.C. § 2423(b)
and two counts of attempted enticement of a minor to engage in
sexual activity in violation of
18 U.S.C. § 2422(b). The district court
accepted the plea. But, before sentencing, Day moved to withdraw
his guilty plea. After a hearing, the district court denied the motion.
The court then sentenced him to life imprisonment. This appeal
followed.
Day challenges his convictions and sentence on several
grounds. He argues the district court erred by accepting his guilty
plea because his plea colloquy was insufficient. He argues that the
district court abused its discretion by denying his motion to with-
draw his plea. He also argues that he should have received a three-
level reduction under the Sentencing Guidelines for accepting re-
sponsibility for his crimes. And he argues that the district court
erred procedurally when imposing his sentence. After review, none
of these arguments withstand scrutiny. Accordingly, we affirm. 1
1 Day’s motion to supplement the record is GRANTED.
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22-11718 Opinion of the Court 3
I.
We review a district court’s denial of a motion to withdraw
a guilty plea for abuse of discretion. See United States v. Buckles,
843
F.2d 469, 474 (11th Cir. 1988). But our review of a district court’s
factual findings is for clear error. See United States v. McPhee,
336
F.3d 1269, 1275 (11th Cir. 2003). Review for clear error means that
we reverse only if “review of the entire record leaves us ‘with the
definite and firm conviction that a mistake has been committed.’”
Id. (quoting United States v. Engelhard Corp.,
126 F.3d 1302, 1305
(11th Cir. 1997)). Likewise, “we allot substantial deference to the
factfinder . . . in reaching credibility determinations with respect to
witness testimony.”
Id. (quoting EEOC v. Joe’s Stone Crab, Inc.,
220
F.3d 1263, 1285-86 (11th Cir. 2000)). We reverse a credibility deter-
mination only if we are convinced that no reasonable factfinder
would make the same determination. Jeffries v. United States,
748
F.3d 1310, 1313 (11th Cir. 2014).
“We review a district court’s denial of an acceptance-of-re-
sponsibility adjustment under [U.S.S.G.] § 3E1.1 for clear error.”
United States v. Tejas,
868 F.3d 1242, 1247 (11th Cir. 2017). Because
“[t]he district court is in a unique position to evaluate whether a
defendant has accepted responsibility,” the district court’s “deter-
mination is entitled to great deference on review.”
Id. Thus, we will
set aside the district court’s determination only if “the facts in the
record clearly establish that the defendant accepted responsibility.”
Id.
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4 Opinion of the Court 22-11718
II.
To start, we reject two of Day’s arguments in this appeal be-
cause they rest on a flawed premise about
18 U.S.C. § 2423(b). Day
says that he resided in Vietnam when he traveled there to molest
children and has an “absolute defense” under Section 2423(b) be-
cause his travel to Vietnam was to return home. Day contends that
the district court should have advised him of the relevance of his
residency during his plea colloquy. And Day argues (1) the district
court erred by accepting his plea because his plea colloquy was in-
sufficient; and (2) the district court erred by denying his withdrawal
motion because he did not knowingly and voluntarily enter his
plea. Because Day’s residency is not a defense to his convictions
under Section 2423(b), we disagree.
Under the ordinary meaning of Section 2423(b), it is no de-
fense that Day resided in Vietnam when he traveled there for the
purpose of engaging in illicit sexual conduct. At the time of Day’s
offenses, Section 2423(b) provided that “a United States citizen . . .
who travels in foreign commerce, for the purpose of engaging in
any illicit sexual conduct with another person shall be [punished].”
18 U.S.C. § 2423(b) (version effective April 30, 2003, to Dec. 20,
2018). The word “travel” refers to the journey, not the destination.
“Travel” means to make a trip, whether that is toward one’s resi-
dence or away from one’s residence. E.g., The Oxford English Dic-
tionary (2d ed. 1989).
The upshot is that an offense under Section 2423(b) “is com-
plete as soon as one begins to travel with the intent to engage in a
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22-11718 Opinion of the Court 5
sex act with a minor.” United States v. Pendleton,
658 F.3d 299, 304
(3d Cir. 2011); accord United States v. Glenn,
839 F. App’x 376, 386
(11th Cir. 2020). By the time a defendant arrives in the place where
he intends to engage in illicit sexual conduct, the offense under Sec-
tion 2423(b) is complete. And so, the defendant’s intent to remain
in that place and reside there is no defense. Other comparable of-
fenses, such as an offense under Section 2423(c), are not complete
until the illicit sexual conduct occurs. See United States v. Pepe,
895
F.3d 679, 691 (9th Cir. 2018). This distinction explains why Con-
gress amended Section 2423(c) to include one who “travels” and
“engages in any illicit sexual conduct” and one who “resides . . . in
a foreign country” and engages in that conduct. Violence Against
Women Reauthorization Act of 2013,
Pub. L. 113-4, 127 Stat. 142.
But such an amendment to Section 2423(b) would be superfluous
because the ordinary meaning of “travel[] in foreign commerce”
already includes traveling to and from one’s residence.
The plea colloquy establishes that Day correctly understood
that he would be guilty of the offense as long as one of the reasons
he traveled to Vietnam was to molest children, even if he were also
returning to his place of residence. For example, when the court
explained this count, Day asked whether “the purpose of engaging
in illicit sexual conduct” had to be “the only purpose of the travel?”
The court and the government explained that the law required that
it be a purpose of the travel, not the sole purpose. Similarly, when
the court asked Day: “Did you travel between 2014 and 2017 back
and forth between the Middle District of Florida and Vietnam to
engage in sex acts with the minor boys in exchange for money and
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6 Opinion of the Court 22-11718
American merchandise?” Day asked whether the court was “asking
[if] that was my sole purpose?” The court said “no.” And Day then
admitted to traveling for that purpose after communicating with
minors in Vietnam about anticipated sex acts. We therefore reject
Day’s residency-based challenges to the sufficiency of his plea col-
loquy and the denial of his withdrawal motion.
Day’s next argument is equally unavailing. Day contends the
court erred by finding that he had the close assistance of counsel
and thus denying his withdrawal motion. Federal Rule of Criminal
Procedure 11 permits a defendant to withdraw a guilty plea after
the district court accepts it if “the defendant can show a fair and
just reason for requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). When ruling on a motion to withdraw a guilty plea, a
district court first considers two things: (1) “whether close assis-
tance of counsel was available” to the defendant, and (2) whether
the defendant knowingly and voluntarily entered the plea. United
States v. Brehm,
442 F.3d 1291, 1298 (11th Cir. 2006). If a defendant
establishes the absence of one of these criteria, a court then consid-
ers whether withdrawal would conserve judicial resources and the
prejudice that withdrawal would cause the government. Id.; United
States v. Gonzalez-Mercado,
808 F.2d 796, 801 (11th Cir. 1987).
The district court did not clearly err by finding that Day had
the close assistance of counsel. Day complains he lacked the close
assistance of counsel because he did not adequately understand
that uncharged sexual abuse committed against other victims
could be used to determine his sentence. On the contrary, Day’s
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22-11718 Opinion of the Court 7
counsel testified that she “explain[ed] to him at length . . . that the
Judge would consider all of these other people, and all of these
other events, and be allowed to think about them in the sentencing
hearing, and consider them as part of this concept of relevant con-
duct.” She also testified that she discussed with Day that he could
receive a life sentence and that the possibility of a sentence of life
imprisonment “was the driving factor of all the strategic choices
that we made in the case.” Counsel also testified that she estimated
spending at least forty hours with Day while working on his case.
The district court found her testimony credible. Moreover, at his
plea colloquy, Day testified that he was satisfied with his represen-
tation, and that his lawyer did everything of her that he asked.
There is a strong presumption that the statements Day made about
his lawyer’s representation during his plea colloquy are true. See
United States v. Rogers,
848 F.2d 166, 168 (11th Cir. 1988) (“[W]hen
a defendant makes statements under oath at a plea colloquy, he
bears a heavy burden to show his statements were false.”). On this
record, we cannot say the district court abused its discretion by
denying Day’s withdrawal motion.
Finally, Day argues the district court erred by not giving him
a three-level reduction in offense level for acceptance of responsi-
bility under U.S.S.G. § 3E1.1. Once more, we cannot say the district
court erred.
Under Section 3E1.1, a defendant’s total offense level de-
creases by two levels if the defendant “clearly demonstrates ac-
ceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a).
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8 Opinion of the Court 22-11718
Section 3E1.1 allows for an additional one-level reduction if the de-
fendant had an offense level of sixteen or more before the two-level
reduction and accepted responsibility “by timely notifying author-
ities of his intention to enter a plea of guilty.” Id. § 3E1.1(b). A guilty
plea, however, does not guarantee a defendant an acceptance-of-
responsibility reduction. Id. § 3E1.1 cmt. n.3.
The district court did not clearly err by denying Day a re-
duction under Section 3E1.1 because, after pleading guilty, Day
stated he did not feel that he was guilty and minimized his harmful
conduct during his sentencing hearing. In the plea withdrawal
hearing, Day testified that he wanted to withdraw his plea because
he “felt that [he] wasn’t really guilty.” Day also indicated that he
pleaded guilty, not out of genuine remorse or acceptance of re-
sponsibility, but because he thought he might receive a shorter sen-
tence. Moreover, at sentencing, Day spoke passively about his con-
duct and did not admit that he harmed the victims in the way the
presentence investigation report described. He also suggested his
victims might have lied to him about their ages. Given Day’s un-
willingness to take ownership of his actions, we cannot set aside
the district court’s determination that he did not sufficiently accept
responsibility to receive a reduction under Section 3E1.1.
Because Day was not entitled to an acceptance-of-responsi-
bility reduction, we need not address his contention that the district
court erred procedurally in calculating his Sentencing Guidelines
range by relying on other relevant conduct. Day acknowledges this
contention hinges on his acceptance-of-responsibility argument.
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22-11718 Opinion of the Court 9
Because Day would still have an offense level of 43—the maximum
offense level—if we accepted his procedural argument, the consid-
eration of relevant conduct, even if error, was harmless. See United
States v. Sanchez,
30 F.4th 1063, 1076 (11th Cir. 2022).
III.
For these reasons, Day’s convictions and sentence are
AFFIRMED.
