USCA11 Case: 22-13284 Document: 38-1 Date Filed: 11/27/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13284
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO BOTTON RUIZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:22-cr-20036-JEM-1
____________________
USCA11 Case: 22-13284 Document: 38-1 Date Filed: 11/27/2023 Page: 2 of 6
2 Opinion of the Court 22-13284
Before JILL PRYOR, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Alfredo Ruiz, proceeding with counsel, appeals his convic-
tions and total sentence of 200 months’ imprisonment for two
counts of attempted sex trafficking of a minor, in violation of
18 U.S.C. § 1591(a)(1), and two counts of attempted enticement of
a minor to engage in unlawful sexual activity, in violation of
18
U.S.C. § 2422(b). On appeal, he argues that that the district court
erred by denying his motion for a judgment of acquittal because
there was insufficient evidence from which the jury could have rea-
sonably concluded that he knowingly attempted to entice a minor
to engage in unlawful, commercial sex acts. He also argues that
the district court abused its discretion by imposing a total sentence
of 200 months’ imprisonment because his total sentence is substan-
tively unreasonable.
I.
We review whether sufficient evidence supported a jury’s
guilty verdict de novo, resolving all reasonable inferences in favor of
the verdict. United States v. Lee,
603 F.3d 904, 912 (11th Cir. 2010).
We will not disturb the verdict unless no trier of fact could have
found guilt beyond a reasonable doubt.
Id.
Under
18 U.S.C. § 1591(a)(1), it is unlawful to recruit, entice,
harbor, transport, provide, obtain, or maintain a minor, knowing
or in reckless disregard of the fact, that means of force, threats of
force, fraud, coercion, or any combination of such means will be
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22-13284 Opinion of the Court 3
used to cause the minor to engage in a commercial sex act.
18
U.S.C. § 1591(a)(1). Under
18 U.S.C. § 2422(b), it is unlawful to
knowingly attempt to entice a minor to engage in unlawful sexual
activity.
18 U.S.C. § 2422(b). To sustain a conviction for the crime
of attempt, the government most show: (1) that the defendant had
the specific intent to engage in the criminal conduct for which he
was charged and (2) that he took a substantial step toward commis-
sion of the offense. United States v. Murrell,
368 F.3d 1283, 1286
(11th Cir. 2004). The government must prove that the defendant
intended to cause assent on the part of the minor, not that he acted
with specific intent to engage in the sexual activity, and that he
took a substantial step toward causing assent, not toward causing
actual sexual contact. Lee,
603 F.3d at 914.
To determine whether a defendant took a substantial step
under § 2422(b), we consider the totality of the defendant’s actions.
Id. at 914, 916. We have held that a defendant’s sexually solicitous
communication can constitute a substantial step under § 2422(b)
because the principal, if not exclusive, means of committing the of-
fense requires oral or written communications. United States v.
Rothenberg,
610 F.3d 621, 626-27 (11th Cir. 2010). The defendant
takes a substantial step when his communication crosses the line
from sexual banter to criminal enticement.
Id. at 627. Additionally,
in Murrell, we determined that the defendant took a substantial step
where the defendant did the following: sent text messages to an
undercover officer posing as the minor’s parent, in which he ex-
pressed his desire to have sex with the minor in exchange for
money; arranged a meeting for the purpose of having sex with the
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4 Opinion of the Court 22-13284
minor; arrived at the designated time and place; and brought with
him a teddy bear, $300 in cash, and a box of condoms. Murrell,
368
F.3d at 1284-85, 1287-88. However, evidence that the defendant
traveled to meet the minor is not necessary to sustain an attempt
conviction under § 2422(b). United States v. Yost,
479 F.3d 815,
819-20 (11th Cir. 2007).
When a defendant takes the stand and testifies in his own
defense, the jury may disbelieve his testimony, and the defendant’s
own statements may be considered as substantive evidence of his
guilt. United States v. Brown,
53 F.3d 312, 314 (11th Cir. 1995).
Here, the district court did not err by denying Ruiz’s motion
for a judgment of acquittal because there was sufficient evidence
from which the jury could have reasonably concluded that he
knowingly attempted to entice a minor to engage in unlawful,
commercial sex acts. See §§ 1591(a)(1), 2422(b); Murrell,
368 F.3d at
1286; Lee,
603 F.3d at 912, 914. Ruiz’s argument is that he thought
the girls were adults, notwithstanding that the undercover agent
posing as the mother repeatedly told him they were 12 and 14 years
old. He argues that advertisements for sex routinely lie about age
in order to seem younger. Although he testified that he had no
intentions of engaging in sexual activity with minor girls, the jury
was free to believe the opposite and to use his testimony as sub-
stantive evidence of his guilt. See Brown, 53 F.3d at 314. After learn-
ing that the girls he would pay to have sex with were minors, he
continued talking to the undercover agent who was acting as the
mother of the girls, he asked for more information about the sexual
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22-13284 Opinion of the Court 5
services and pricing, he made plans to meet with the mother and
the girls, and he arrived at the meeting location with his payment.
See Rothenberg,
610 F.3d at 626-27; Murrell,
368 F.3d at 1284-85,
1287-88; Yost,
479 F.3d at 819-20. Thus, there was sufficient evi-
dence to uphold his convictions.
II.
We consider the substantive reasonableness of a sentence
under a deferential abuse of discretion standard. United States v.
Butler,
39 F.4th 1349, 1354-55 (11th Cir. 2022). In reviewing the rea-
sonableness of a sentence, we will not substitute our own judg-
ment for that of the district court and will affirm a sentence so long
as the court’s decision was in the ballpark of permissible outcomes.
Id. at 1355. The defendant bears the burden of showing that the
sentence is unreasonable in light of the record and the
18 U.S.C. § 3553(a) factors. United States v. Gonzalez,
550 F.3d 1319,
1324 (11th Cir. 2008).
Under § 3553(a), the district court must impose a sentence
that is sufficient, but not greater than necessary, to reflect the seri-
ousness of the offense, to promote respect for the law, to provide
just punishment for the offense, to afford adequate deterrence, and
to protect the public from further crimes of the defendant.
18
U.S.C. § 3553(a). In addition, the court must consider, among
other factors, the nature and circumstances of the offense, the his-
tory and characteristics of the defendant, and the need to avoid un-
warranted sentence disparities among similarly situated defend-
ants.
Id. The court imposes a substantively unreasonable sentence
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6 Opinion of the Court 22-13284
when it fails to afford consideration to relevant factors that were
due significant weight, gives significant weight to an improper or
irrelevant factor, or commits a clear error of judgment in consider-
ing the proper factors. Butler, 39 F.4th at 1355. The court commits
a clear error of judgment when it weighs the § 3553(a) factors un-
reasonably. Id. However, the weight given to each factor is com-
mitted to the sound discretion of the court, and the court may at-
tach great weight to one factor over the others. Id.
Additionally, the court’s failure to discuss mitigating evi-
dence does not indicate that the court erroneously ignored or failed
to consider the evidence. Id. at 1356. The court’s acknowledgment
that it has considered the § 3553(a) factors and the parties’ argu-
ments is sufficient. Butler, 39 F.4th at 1356. Furthermore, a sen-
tence imposed well below the statutory maximum may indicate
reasonableness. Gonzalez,
550 F.3d at 1324.
Here, the district court did not abuse its discretion because
it imposed a substantively reasonable total sentence. The court
properly considered and weighed the § 3553(a) factors. See
§ 3553(a); Butler, 39 F.4th at 1355-56. Additionally, his total sen-
tence of 200 months’ imprisonment was well below the statutory
maximum of life imprisonment and below the guideline imprison-
ment range of 235 months to 293 months, and thus, his total sen-
tence was within the ballpark of permissible outcomes. See Gonza-
lez,
550 F.3d at 1324; Butler, 39 F.4th at 1355.
AFFIRMED.
