United States v. Dennis Sorto-Enamorado ( 2013 )

Case: 12-30002 Document: 00512180007 Page: 1 Date Filed: 03/19/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 19, 2013
No. 12-30002 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DENNIS M. SORTO-ENAMORADO,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:10-CR-224
Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Dennis Sorto-Enamorado (“Sorto”) challenges his convictions for (1) using
facilities of interstate commerce to knowingly attempt to persuade, induce,
entice, or coerce a minor to engage in criminal sexual activity; and
(2) attempting to receive child pornography—violations of 18 U.S.C. §§ 2422(b)
& 2252(a)(2). The incident leading to these convictions began when Sorto used
the website Craigslist to solicit casual sex. A police officer, posing as a girl
named “Lori,” responded with a picture and told him she was a “15 yr old fem.”
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-30002
Sorto relayed a desire to have sex with her and asked for “naked pics.” Lori then
specifically asked: “is it ok im 15?” Instead of replying with concerns or
objections to her age, he arranged to meet Lori at her hotel while her mother was
supposedly out; police arrested him there. After a jury conviction, Sorto timely
appeals the sufficiency of the evidence and the denial of an entrapment
instruction by the district court. Finding no error, we AFFIRM.
DISCUSSION
1. Sufficiency of the Evidence
Sorto first argues the evidence was insufficient to show the requisite mens
rea for the crimes. He failed, however, to preserve error in this regard when he
did not cite specific reasons in his motion for judgment of acquittal; we therefore
review for plain error. United States v. Delgado, 672 F.3d 320, 331–32 (5th Cir.
2012) (en banc), cert. denied 133 S. Ct. 525 (2012). Under plain error review,
overturning a conviction because of insufficient evidence requires a defendant
to prove that a manifest miscarriage of justice took place. Id. at 331. This
“occurs [inter alia] where the record is devoid of evidence pointing to guilt.”
United States v. Rodriguez-Martinez, 480 F.3d 303, 307 (5th Cir. 2007) (quoting
United States v. Burton, 324 F.3d 768, 770 (5th Cir. 2003)).
The record here is replete with evidence of Sorto’s guilt. His mens rea
could initially be established by his twice being apprised of Lori’s age. He also
later confessed to both knowing she was fifteen (although at trial he claimed that
fact “escaped” him) and his intention to have sex with her. The jury was free to
credit the confession and other evidence of the crimes over Sorto’s late claim of
ignorance concerning the age. See United States v. Runyan, 290 F.3d 223, 240
(5th Cir. 2002). Accordingly, there was no manifest miscarriage of justice.
2. Refusal of an Entrapment Instruction
Sorto next contends the district court erred by denying his request for an
entrapment instruction to the jury. He maintains he sought only to engage in
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legal adult activity through his initial ad and that the government baited him
with its response and a picture of an older looking female. Refusal of the
entrapment instruction is subject to de novo review. United States v. Ogle,
328 F.3d 182, 185 (2003). Entrapment only occurs if the government “implant[s]
in an innocent person’s mind the disposition to commit a criminal act, and then
induce[s] commission of the crime so that the Government may prosecute.”
Jacobson v. United States, 503 U.S. 540, 548, 112 S. Ct. 1535, 1540 (1992).
While the government provided the opportunity, it cannot be said that the
disposition to perpetrate these acts came from anywhere other than Sorto.
Rather than reluctance, he demonstrated zeal for the crime from the beginning.
Ogle, 328 F.3d at 185–86. Contrary to his claim, the lack of a criminal history
of pedophilia does not prove a lack of such disposition. Though Sorto knew Lori’s
age from the outset, he moved quickly; this readiness signals predisposition to
commit the crime. See United States v. Byrd, 31 F.3d 1329, 1336 (5th Cir. 1994).
Neither did the government induce Sorto’s acts. Seizing the opportunity
provided, it was Sorto who escalated the sexual rhetoric and pushed for a “hook
up” that same night. Though the picture sent could be thought to be an older
girl, it accompanied an age disclosure. It is likewise irrelevant that they met on
an “adult” portion of the site. Even assuming he did not know minors frequent
that venue, Sorto still gave assurances her age was acceptable. Ultimately,
Sorto’s eagerness to avail himself of the criminal opportunity precludes an
entrapment instruction here.1 See Jacobson, 503 U.S. at 550, 112 S. Ct. at 1541.
CONCLUSION
For the foregoing reasons, the convictions are AFFIRMED.
1
Other circuits considering similar “To Catch a Predator” sting operations have not
required entrapment instructions either. See United States v. Davila-Nieves, 670 F.3d 1 (1st
Cir. 2012), cert. denied, 132 S. Ct. 2407 (2012); United States v. Young, 613 F.3d 735 (8th Cir.
2010).
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