United States v. Cole Crocker ( 2020 )

Case: 19-51152 Document: 00515570140 Page: 1 Date Filed: 09/18/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-51152 September 18, 2020
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Cole S. Crocker,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:19-CR-106-1
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Cole S. Crocker was convicted of one count of attempted coercion and
enticement of a minor, in violation of 18 U.S.C. § 2422(b). The district court
sentenced him to 240 months of imprisonment and 10 years of supervised
release. The district court also imposed a $50,000 fine and a $5,000
*
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opinion should not be published and is not precedent except under the limited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.
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No. 19-51152
assessment under the Justice for Victims of Trafficking Act (JVTA), 18
U.S.C. § 3014.
On appeal, Crocker contends that the evidence did not establish a
violation of § 2422(b). 1 He asserts that sexual interest in children and “sex
talk” do not meet the requirements of § 2422(b) because such activities are
not a crime under Texas law. He also asserts that there was no evidence to
show that he enticed or persuaded a minor to engage in sexual activity. Our
review of Crocker’s sufficiency challenges is de novo. United States v. Imo,
739 F.3d 226, 235 (5th Cir. 2014). Viewing the evidence “in the light most
favorable to the verdict,” we must determine “whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id. (internal quotation marks and citation omitted).
To begin, a defendant can violate § 2422 through communications
with an undercover agent posing as a person with access to a child. United
States v. Caudill, 709 F.3d 444, 445-46 (5th Cir. 2013). That is what
happened in this case. Crocker responded to a Craigslist advertisement in
which an undercover agent, special agent Josh Pirtle, posed as a “young
uncle” seeking others with “taboo interest.” Crocker’s text messages to
Agent Pirtle, which were admitted into evidence at trial, conveyed Crocker’s
1
Section 2422(b) provides that
[w]hoever, using the mail or any facility or means of interstate or foreign
commerce, or within the special maritime and territorial jurisdiction of the
United States knowingly persuades, induces, entices, or coerces any
individual who has not attained the age of 18 years, to engage in
prostitution or any sexual activity for which any person can be charged
with a criminal offense, or attempts to do so, shall be fined under this title
and imprisoned not less than 10 years or for life.
(emphasis added); see also United States v. Rounds, 749 F.3d 326, 333 (5th Cir. 2014)
(listing the elements the government must prove under § 2422(b)).
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intention to engage in sexual activity with the “uncle’s” niece, described as
an eight-year-old girl. Thus, contrary to Crocker’s argument, a rational trier
of fact could have determined beyond a reasonable doubt that Crocker
contemplated sexual conduct that would have constituted a violation of
Texas law. Imo, 739 F.3d at 235; see TEX. PENAL CODE § 22.011.
Crocker also contends that there was no evidence that he took a
substantial step in the attempt to violate § 2422(b). For a § 2422(b) violation,
the government must “prove beyond a reasonable doubt that [the defendant]
intended to persuade, induce, entice, or coerce a person whom he believed to
be a minor . . . and took a substantial step toward that persuasion or
enticement.” United States v. Barlow, 568 F.3d 215, 219 (5th Cir. 2009)
(internal quotation marks and citation omitted). In this context, a
“substantial step” means “a substantial step toward persuading [the minor
victim] to engage in illegal sexual activity.” United States v. Broussard, 669
F.3d 537, 548 (5th Cir. 2012). The evidence introduced at trial showed that
Crocker went to a hotel to meet Agent Pirtle (the “uncle”) and the eight-
year-old girl. This evidence is sufficient for a rational trier of fact to
determine beyond a reasonable doubt that Crocker took the requisite
substantial step. United States v. Howard, 766 F.3d 414, 419 (5th Cir. 2014).
Crocker next asserts that the district court erred by allowing Agent
Pirtle to testify regarding his opinion of Crocker’s mental state, specifically
that Crocker intended to have sex with a child. According to Crocker, Agent
Pirtle’s testimony constituted improper expert testimony as to Crocker’s
guilt or innocence. Crocker did not raise this objection at trial, so we review
for plain error. United States v. Akins, 746 F.3d 590, 597 (5th Cir. 2014); see
Puckett v. United States, 556 U.S. 129, 135 (2009). Agent Pirtle testified as a
lay witness and a law enforcement officer about his first-hand observations in
this specific case. This is permitted under United States v. El-Mezain, 664
F.3d 467, 514 (5th Cir. 2011). Crocker’s assertion thus lacks merit.
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Turning to his sentence, Crocker challenges the $50,000 fine imposed
by the district court. We review the reasonableness of a defendant’s
sentence, including a fine, for abuse of discretion. See United States v.
McElwee, 646 F.3d 328, 337-40 & n.8 (5th Cir. 2011). The district court
imposed the fine based on Crocker’s earning potential. It was Crocker’s
burden to establish his inability to pay, but Crocker failed to present any
evidence that he did not have the future ability to pay the fine. United States
v. Magnuson, 307 F.3d 333, 335 (5th Cir. 2002). Accordingly, this issue
likewise lacks merit.
Finally, Crocker contends, for the first time on appeal, that the district
court erred in finding that he was not indigent for purposes of the JVTA
assessment imposed by the district court. We review for plain error. Puckett,
556 U.S. at 135. A district court “shall assess an amount of $5,000 on any
non-indigent person . . . convicted of an offense . . . relating to sexual
exploitation and other abuse of children.” 18 U.S.C. § 3014(a)(3)
(parentheses omitted). District courts may consider future earning capacity
in determining non-indigence under § 3014(a)(3), and the obligation to pay
continues for 20 years after the release from imprisonment or the entry of
judgment, whichever is later. See United States v. Graves, 908 F.3d 137, 141
(5th Cir. 2018), cert. denied, 139 S. Ct. 1360 (2019). Before his conviction,
Crocker had been a car salesman earning between $60,000 and $100,000 per
year for 11 years. Crocker has not shown that the district court applied an
incorrect legal standard, nor has he shown that the finding of non-indigence
was clearly or obviously erroneous. See Puckett, 556 U.S. at 135.
AFFIRMED.
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