United States v. Benavides ( 2022 )

Case: 21-51211 Document: 00516516579 Page: 1 Date Filed: 10/21/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-51211
Summary Calendar FILED
October 21, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Rick Benavides,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:19-CR-152-1
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Rick Benavides appeals his conviction and sentence for attempted
coercion and enticement of a minor. He challenges the admission of extrinsic
offense evidence, the sufficiency of the evidence, and the application of a
sentence enhancement.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-51211 Document: 00516516579 Page: 2 Date Filed: 10/21/2022
No. 21-51211
The district court did not abuse its discretion by admitting a
masturbation video and picture of female genitalia found through a forensic
search of Benavides’s cell phone. See United States v. Kinchen, 729 F.3d 466,
470 (5th Cir. 2013). The record evidence is sufficient to support a finding
that Benavides exchanged the video and picture with a user of the Whisper
application whom Benavides believed was a 15-year-old girl. See United States
v. Gutierrez-Mendez, 752 F.3d 418, 423 (5th Cir. 2014). The extrinsic act
evidence was relevant to rebut his entrapment defense. See United States v.
Hooker, 997 F.2d 67, 76 (5th Cir. 1993); Fed. R. Evid. 404(b). Contrary
to Benavides’s assertion, evidence of extrinsic offenses that occur
subsequent to the charged offense is not barred by Rule 404(b). See United
States v. Jimenez, 613 F.2d 1373, 1375-76 (5th Cir. 1980). Evidence that
Benavides was exchanging sexually explicit videos and pictures with someone
he believed was a 15-year-old girl, while simultaneously chatting with and
arranging to meet the Government’s 14-year-old persona, suggests that he
was predisposed to entice a minor to engage in sexual activity and was not
induced by the Government’s actions. See United States v. Howard, 766 F.3d
414, 425 (5th Cir. 2014).
Moreover, the video and picture were not unduly prejudicial as they
did not show violence or sexual contact. See United States v. Grimes, 244 F.3d
375, 383 (5th Cir. 2001). The Government’s need for the evidence, the
similarity of the offenses, and the closeness in time made the extrinsic
evidence highly probative in proving the key issue at trial. See United States
v. Juarez, 866 F.3d 622, 627 (5th Cir. 2017). In addition, the district court
was careful to limit the amount of the media that was shown to the jury and
gave a limiting instruction in the jury charge. See United States v. Naidoo, 995
F.3d 367, 377-78 (5th Cir. 2021). Benavides has not shown that the admission
of the video and picture were a “prejudicial abuse of discretion.” United
States v. Williams, 620 F.3d 483, 491 (5th Cir. 2010) (quotation omitted).
2
Case: 21-51211 Document: 00516516579 Page: 3 Date Filed: 10/21/2022
No. 21-51211
As for the sufficiency of the evidence, “[e]ntrapment is an affirmative
defense with two related elements: government inducement of the crime and
a lack of predisposition on the part of the defendant to engage in the criminal
conduct.” United States v. Wise, 221 F.3d 140, 154 (5th Cir. 2000). Our
careful review of the trial evidence in the light most favorable to the verdict
convinces us that, even assuming that there was government inducement
here, there was sufficient evidence from which a rational jury could have
found that the Government proved beyond a reasonable doubt that Benavides
was predisposed to commit the crime of which he was found guilty. See
United States v. Reyes, 239 F.3d 722, 739 (5th Cir. 2001); United States v.
Theagene, 565 F.3d 911, 920 (5th Cir. 2009).
Finally, Benavides has failed to show that the district court clearly
erred by finding that he authored a note on his cell phone, describing in the
first person multiple encounters where he had sexual intercourse with a 14-
year-old girl. See United States v. Sandlin, 589 F.3d 749, 757 (5th Cir. 2009).
Benavides failed to offer rebuttal evidence to show “that those facts are
‘materially untrue, inaccurate or unreliable.’” United States v. Harris, 702
F.3d 226, 230 (5th Cir. 2012). He has shown no error in the calculation of
his sentence. See United States v. Martinez-Romero, 817 F.3d 917, 919 (5th
Cir. 2016).
The district court’s judgment is AFFIRMED.
3