United States v. Fernando , 291 F. App'x 494 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4896
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WARSHAHENNEDIGE ANTON RAJ NISHANTHA FERNANDO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:07-cr-00038-NCT)
Submitted: August 14, 2008 Decided: September 5, 2008
Before MOTZ and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Donald K. Tisdale, Sr., Christopher R. Clifton, GRACE TISDALE &
CLIFTON, P.A., Winston-Salem, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Michael A. DeFranco,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Warshahennedige Anton Raj Nishantha Fernando (“Fernando”)
appeals his convictions following a jury trial and his sentence for
using interstate commerce to coerce or entice a minor to engage in
illegal sexual activity,1 in violation of 18 U.S.C.A. § 2422(b)
(West 2000 & Supp. 2008), and attempting to transfer obscene
material to a minor under the age of 16, in violation of 18 U.S.C.
§ 1470 (2000). He claims the district court erred in denying his
Fed. R. Crim. P. 29 motion for acquittal. He also challenges
certain instructions and contends that his 120-month statutorily
mandated sentence is unreasonable. We affirm.
The evidence at trial established that in August 2006,
Fernando, who was forty-two and identified himself using the screen
name “thicktoolngso,” began chatting on the internet with
“kimmie14fun” (“Kimmie"), an undercover officer posing as a
fourteen-year-old girl. During the span of approximately a week,
Fernando initiated four on-line conversations with Kimmie.
Fernando brought up sexually explicit topics and electronically
sent Kimmie a picture of himself holding his erect penis. Fernando
told Kimmie he wanted to meet her in person, and Kimmie agreed to
meet him in front of a Borders Bookstore.
1
Specifically, the indictment alleged that the sexual activity
would violate N.C. Gen. Stat. § 14-202.1 (2007), prohibiting taking
indecent liberties with a minor.
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Fernando was arrested at the arranged meeting place and
admitted what he had done to police. At trial, Fernando maintained
that he thought Kimmie was at least twenty-five and that, although
he pursued sexual conversations with her, he came to meet her
merely because he was “curious” to see who she was.
Fernando argues that the district court erred in denying
his Rule 29 motion for acquittal. He contends that he could not be
convicted of violating § 2422(b) because he interacted with an
adult, not a minor. This court reviews de novo the denial of a
Rule 29 motion for acquittal, viewing the evidence in the light
most favorable to the Government. United States v. Alerre, 430
F.3d 681, 693 (4th Cir. 2005).
Under § 2422(b), it is unlawful for a person, “using
. . . any facility or means of interstate . . . commerce . . . [to]
knowingly persuade[], induce[], entice[], or coerce[] any
individual who has not attained the age of 18 years, to engage in
. . . any sexual activity for which any person can be charged with
a criminal offense, or attempt[] to do so . . . .” See 18 U.S.C.A.
§ 2422(b). To obtain a conviction under § 2422(b), then, the
Government also had to establish that the sexual activity Fernando
sought to engage in would violate N.C. Gen. Stat. § 14-202.1- 3 -
(2007), which makes it unlawful for an individual to take indecent
liberties with a child under the age of sixteen.2
In State v. Ellis, 657 S.E.2d 51 (N.C. App. 2008), the
North Carolina Court of Appeals determined that, under state law,
indecent interaction with an adult undercover officer may
constitute the crime of attempted indecent liberties with a child,
where the defendant believed the victim to be the requisite age.
Ellis, 657 S.E.2d at 54-55.3 This court also recently upheld a
conviction under 18 U.S.C.A. § 2423(b) (West 2000 & Supp. 2008)
(prohibiting traveling in interstate commerce “for the purpose of
engaging in illicit sexual conduct” with a minor) where, although
the defendant believed he was arranging to meet a twelve-year-old
girl through an intermediary, no actual minor was placed at risk.
United States v. Kelly, 510 F.3d 433, 441 (4th Cir. 2007), cert.
2
To obtain a conviction for indecent liberties under N.C. Gen.
Stat. § 14-202.1, the State is required to prove the following
elements: “(1) the defendant was at least 16 years of age; (2) he
was five years older than his victim; (3) he willfully took or
attempted to take an indecent liberty with the victim; (4) the
victim was under 16 years of age at the time the alleged act or
attempted act occurred; and (5) the action by the defendant was for
the purpose of arousing or gratifying sexual desire.” State v.
Thaggard, 608 S.E.2d 774, 786-87 (N.C. App. 2005).
3
In addition, several circuits that have considered the
impossibility defense to charges of unlawful sexual acts involving
a minor have uniformly rejected the argument that an actual child
must be placed at risk to secure a conviction under § 2422(b).
See, e.g., United States v. Helder, 452 F.3d 751, 753-56 (8th Cir.
2006); United States v. Sims, 428 F.3d 945, 959-60 (10th Cir.
2005); United States v. Meek, 366 F.3d 705, 717-20 (9th Cir. 2004);
United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002); United
States v. Farner, 251 F.3d 510, 512-13 (5th Cir. 2001).
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denied, 128 S. Ct. 1917 (2008). This court rejected the argument
that an actual minor must be involved to secure a conviction under
§ 2423(b), concluding, “[t]his sensible result follows from the
clear language of the statute, under which a conviction ‘turns
simply on the illegal purpose for which [the defendant] traveled.’”
Kelly, 510 F.3d at 441 (quoting Root, 296 F.3d at 1231).
Accordingly, we conclude that the district court did not err in
denying Fernando’s motion for judgment of acquittal based on
impossibility.
Fernando challenges the jury instructions in two
respects. He first argues that the district court failed to
“adequately explain” N.C. Gen Stat. § 14-201.1 (taking indecent
liberties with children). Fernando did not object to this
instruction below, and identifies no specific error on appeal. The
instruction included the elements of § 14-202.1 as described in the
statute and in North Carolina caselaw. We conclude there was no
error, plain or otherwise. Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993).4
Fernando further suggests that it was error for the
district court to omit an instruction on entrapment. However,
4
To the extent Fernando claims that violation of the North
Carolina statute requires that the defendant must be in the
presence (actual or constructive) of a minor, his argument is
unavailing. Fernando was convicted of violating § 2422(b), which
requires the Government to establish that he persuaded or enticed
a minor to commit illegal sexual activity, or attempted to do so.
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Fernando expressly declined to seek such an instruction below.
Even if this claim had been properly preserved for appellate review
and presented on appeal, the evidence did not support an entrapment
instruction. See United States v. Harrison, 37 F.3d 133, 136 (4th
Cir. 1994) (“[W]hen government agents merely offer an opportunity
to commit the crime and the defendant promptly avails himself of
that opportunity, an entrapment instruction is not warranted.”).
Finally, while recognizing the “mandatory nature” of his
sentence, Fernando argues that his 120-month statutorily mandated
minimum sentence is unreasonable. This court reviews a district
court’s sentence for reasonableness under an abuse-of-discretion
standard. Gall v. United States, 128 S. Ct. 586, 597 (2007); see
also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
When sentencing a defendant, a district court must: (1) properly
calculate the Guidelines range; (2) determine whether a sentence
within that range serves the factors set out in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2008); (3) implement mandatory
statutory limitations; and (4) explain its reasons for selecting a
sentence. Pauley, 511 F.3d at 473. In the Fourth Circuit, “[a]
sentence within the proper Sentencing Guidelines range is
presumptively reasonable.” United States v. Allen, 491 F.3d 178,
193 (4th Cir. 2007); see Rita v. United States, 127 S. Ct. 2456,
2462-69 (2007) (upholding presumption of reasonableness for a
within-Guidelines sentence). Absent a motion for substantial
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assistance, a district court lacks authority to impose a sentence
below the statutory mandatory minimum. See United States v. Allen,
450 F.3d 565, 568-69 (4th Cir. 2006). Here, the district court
followed the necessary procedural steps in sentencing Fernando. It
properly calculated the Guidelines range and considered the
§ 3553(a) factors before sentencing Fernando to the statutory
mandatory minimum. The district court thus did not abuse its
discretion in imposing the 120-month sentence.
Accordingly, we affirm Fernando’s convictions and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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