United States of America v. Alexander Davis

New York, NY - Criminal defense lawyer represented defendant with an attempting to entice a minor to engage in sexual conduct and for traveling with intent to engage in illicit sexual conduct charge.

Davis answered an ad in the "w4m” section of

Craigslist.com, where women look for casual sex with men.

The ad was entitled "Wild child,” and unbeknownst to Davis,

was posted by Officer Daniel Block, who was conducting a

sting operation to catch adults trying to have sex with minors.

The ad stated that the poster was an eighteen-year-old woman

and requested that interested men respond "if you are looking

for fun.”1

Davis responded, representing that "she” was

twenty-five years old and "love[s] to indulge in adult fun.”2



Block replied that he was a fourteen year old. To this, Davis

responded, "That's ok I know how to be respectful do you

wanna meet today?”3

Block then continued conversing with

Davis through text messages while pretending that he was an

eighth-grade girl named "Marisa.”

Davis and Marisa exchanged text messages over an

eight-day period. Their text exchanges demonstrate Davis's

attempts to avoid incriminating himself. He showed repeated

reluctance to engage in lewd conversation, expressed fear of

getting caught, stated that that he did not want to have sex with

Marisa because he is gay, and even asked her if she was

1

JA1026.

2

JA1027. Davis also claimed that he was nineteen during their

conversation. He was actually thirty years old at the time, a

fact he revealed later.

3

JA1029.

4

"affiliated with any type of law enforcement.”4

However, his

responses were also permeated with innuendo and marked by

attempts to sexually groom the fictitious minor. He brought up

topics like her virginity,5 plied her with compliments, asked

when she was not being supervised, repeatedly attempted to get

her to meet him, and offered her gifts including an iPad, an

iPhone, payment of her phone bill, and a new bathing suit.

They eventually agreed that she would skip school and meet

him at a McDonalds near her house in Pennsylvania. They

would spend the day together at the water park in Kalahari

Resorts. With their plan in place, the conversation turned

explicitly sexual and Marisa expressed concern about getting

pregnant. Davis assured her that he would bring "protection”

and personal lubricant.

On the morning of the planned meeting, Davis traveled

from New York to the McDonalds parking lot where he was

arrested by Officer Block. Davis had three condoms in his

pocket. During questioning, Davis confessed to knowing

Marisa was fourteen, that they planned to meet that day, and

that he had brought condoms pursuant to their plan. According

to Davis, he only made these statements after Block misled him

to believe that Marisa was real and that her mother had found

their text exchanges and reported this to the police. During a

cigarette break, Davis volunteered to officers that he became

attracted to young girls when he and his family went to the

Kalahari water park and he saw young girls in their swimsuits.

Davis denies making this statement. On the ride to jail, Davis

voluntarily told Block that he liked 14-year-old girls because

he believed prostitutes were unclean. Davis denies he ever

4

JA935-36.

5

JA904.

5

made this statement and claims that it was Block who made a

similarly obscene statement.

B. Procedural History

Davis was charged with one count of use of an interstate

facility to attempt to knowingly persuade, induce, entice and

coerce a minor to engage in sexual activity, 18 U.S.C. §

2422(b), and one count of travel in interstate commerce with

intent to engage in illicit sexual conduct with a minor, 18

U.S.C. § 2423(b). At trial, Davis argued that he did not

knowingly entice a minor because throughout their

conversation he believed "Marisa” was an adult who was roleplaying as a fourteen-year-old. He also argued that he was

entrapped to commit the crime; the court instructed the jury on

an entrapment defense. The jury found Davis guilty on both

counts. At sentencing, the court applied a two-point sentencing

enhancement for Davis's misrepresentation of his age and of

his sexual orientation. He was sentenced to 127 months

imprisonment and five years of supervised release and was

required to register as a sex offender.

Davis appeals, arguing (1) there is insufficient evidence

to uphold both counts of his conviction, (2) the prosecutor

made prejudicial statements that misrepresented the law and

deprived him of due process, (3) he was entrapped as a matter

of law, and (4) his actions did not warrant a sentencing

enhancement.

6

II. Discussion

A. Jurisdiction

The District Court had jurisdiction over prosecutions for

violations of federal law pursuant to 18 U.S.C. § 3231. We

have jurisdiction over an appeal from a final decision of a

district court pursuant to 28 U.S.C. § 1291 and an appeal from

a criminal sentence pursuant to 18 U.S.C. § 3742(a).

B. Sufficiency of Evidence

Davis challenges the sufficiency of the evidence for

both counts of his conviction. Appellate courts apply "a

deferential standard in determining whether a jury's verdict

rests on sufficient evidence,” view the evidence in the light

most favorable to the government, and will uphold the verdict

if "any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.”6

1. Attempted Enticement of a Minor

Davis first challenges his conviction for attempted

enticement of a minor pursuant to 18 U.S.C. § 2422(b). That

statute criminalizes the use of

the mail or any facility or means of

interstate or foreign commerce . . .

[to] knowingly persuade[],

induce[], entice[], or coerce[] any

6 United States v. Ozcelik, 527 F.3d 88, 93 (3d Cir. 2008)

(emphasis omitted).

7

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 . . ..

Because Davis was caught in a sting operation that did not

involve an actual minor, the charge against him was brought

under the attempt provision of § 2422(b).7

A conviction for

attempt under this statute "requires evidence that a defendant

(1) acted with the requisite intent to violate the statute, and (2)

performed an act that, under the circumstances as he believes

them to be, constitutes a substantial step in the commission of

the crime.”8

Davis's challenge implicates both elements.

Davis claims that the government is required to present

objective evidence that unequivocally corroborates a

defendant's intent to commit the substantive offense.

According to Davis, the government's evidence failed to

unequivocally corroborate that he believed he was

communicating with a minor. We disagree with his proposed

standard and with his conclusion.

Unequivocal evidence is not the only way that the

government can prove criminal intent in attempt offenses. In

United States v. Cruz-Jiminez, we explained

7 See United States v. Tykarsky, 446 F.3d 458, 468-69 (3d Cir.

2006); United States v. Pawlowski, 682 F.3d 205, 211 (3d Cir.

2012).

8 Tykarsky, 446 F.3d at 469.

8

if substantial steps are the only

proof of the defendant's criminal

intent, then those steps must

unequivocally evidence such an

intent; that is, it must be clear that

there was a criminal design and

that the intent was not to commit

some non-criminal act. If,

however, there is evidence of

criminal intent independent of that

demonstrated by the defendant's

substantial steps in furtherance of

his criminal design, the substantial

steps do not themselves need to be

unequivocally indicative of

criminal intent—they must merely

corroborate criminal intent. . . .

[S]ubstantial steps in furtherance

of the criminal act can serve to

corroborate criminal intent or, in

some instances, can themselves

supply unequivocal evidence of

the requisite intent.9

As we noted then, our inquiry is consistent with the Model

Penal Code.10 Importantly, we clarified in Cruz-Jiminez "that

the element of intent is not wholly incorporated into the

9 977 F.2d 95, 102, n.11 (3d Cir. 1992) (emphasis added)

(internal citations and quotation marks omitted); accord United

States v. Hite, 769 F.3d 1154, 1164 (D.C. Cir. 2014).

10 Cruz-Jiminez, 977 F.2d at 102 (citing Model Penal Code §

5.01).

9

'substantial step' that is also essential to the crime of

attempt.”

11

Both elements of attempt must be satisfied.

Although sometimes a substantial step may supply

unequivocal evidence of criminal intent, it need not always do

so. If the government presents evidence of criminal intent

independent of a defendant's substantial step, then the

substantial step need only corroborate criminal intent.12

Davis's post-arrest confession to knowing Marisa's age

and their text communications are each evidence of criminal

intent independent of that demonstrated by his substantial

steps,13 and as discussed below, his travel to the prearranged

meeting place and possession of condoms are substantial steps

that corroborate his criminal intent.14

Davis's argument that he

believed Marisa was a role-playing adult was rejected by the

jury and belied by his post-arrest statements to police, his texts

11 Id. at 102 n.11.

12 Although Cruz-Jiminez involved an attempted drug

transaction and not the attempted enticement of a minor, 977

F.2d at 97, its discussion of criminal attempt is equally

applicable here. We applied this standard in the context of an

enticement conviction in Tykarsky, even if we did not

expressly state the full rule. See 446 F.3d at 469.

13 See Tykarsky, 446 F.3d at 469 ("The instant messages and

the statements that [the defendant] made to FBI agents upon

his arrest establish [the defendant]'s subjective intent . . . .”);

Cruz-Jiminez, 977 F.2d at 102 n.11 ("[A] defendant's

confession could furnish evidence of criminal intent

independent from that demonstrated by any substantial steps

taken in furtherance of the crime.”).

14 See Tykarsky, 446 F.3d at 469.

10

expressing concerns about getting caught by law enforcement,

and his grooming tactics tailored for a minor.

15



Davis asks us to consider the context in which he was

interviewed by police and to believe that Officer Block's

misleading statements and threatening manner prompted him

to falsely confess to knowing Marisa's age. We disagree. The

jury was aware of Davis's version of his post-arrest statements

and the context surrounding them through his own testimony.

The jury's verdict demonstrates that they either did not believe

him or did not give his version of the facts much weight. Our

deferential standard of review obliges us to uphold the jury's

verdict.

2. Interstate Travel for Purpose of Illicit Sexual Conduct

Davis relies on the same theory—that he believed he

was traveling across state lines to meet an adult and not a

minor—to argue that there was insufficient evidence to

establish his criminal intent in violation of 18 U.S.C. §

2423(b). Section 2423(b) criminalizes "travel[] in interstate

commerce . . . with a motivating purpose of engaging in any

illicit sexual conduct with another person.” The government

introduced evidence that Davis traveled from New York to

Pennsylvania on the morning of his planned meeting with

Marisa. As discussed above, there was ample evidence from

15 This Court and other courts of appeals have upheld

convictions where the factfinders reject similar defenses

concerning knowledge of the would-be-victim's age. See, e.g.,

Pawlowski, 682 F.3d at 211; United States v. Berk, 652 F.3d

132, 140 n.8 (1st Cir. 2011) (on plain error review).

11

which the jury could conclude that Davis believed he was

meeting a minor and that the meeting would culminate in sex.

C. Prosecutor's Statements

Next, Davis claims that he was prejudiced by the

prosecutor's alleged misstatement of law during closing

arguments. The prosecutor told the jury that the substantial

step element of Davis's § 2422(b) charge was satisfied by his

travel to meet Marisa and by his possession of condoms. Davis

objected, contending that a substantial step towards violating §

2422(b) must occur through the communications themselves.

Consistent with his theory at trial, Davis argues on appeal that,

"as a matter of law and logic,” post-enticement acts like travel

and the possession of condoms can never be a substantial step

for enticement of a minor. We review questions of law de

novo,16 and prejudicial statements made by a prosecutor at

closing for harmless error.17



First, Davis contends that, as a matter of law, a

substantial step must be necessary to the consummation of the

crime, citing United States v. Bailey.

18

Because travel and

possession of condoms are not necessary to violate § 2422(b),

he asserts that neither of these acts can constitute a substantial

step towards that offense. Second, Davis argues that, as a

matter of logic, post-enticement acts cannot constitute a

substantial step because they occur after the alleged

enticement. To support this argument, Davis relies on United

16 United States v. Mitchell, 690 F.3d 137, 148 (3d Cir. 2012).

17 United States v. Gambone, 314 F.3d 163, 177 (3d Cir. 2003).

18 228 F.3d 637, 640 (6th Cir. 2000).

12

States v. Nitschke,

19 a district court opinion from the District of

Columbia Circuit that supports his contention that postenticement acts can never serve as a substantial step.

We do not agree with his interpretation of the law of

attempt. Davis misapprehends the relationship of a substantial

step to a criminal offense. The central purpose of the

substantial step inquiry is to corroborate criminal intent20 and

to establish that a defendant went beyond mere planning.21

The

substantial step does not need to be the exact conduct that the

statute criminalizes. It would be absurd to require the

substantial step, a single element of attempt, to be identical to

the consummated crime but for the fictitious minor.

22



However, "important to a substantial-step assessment is an

understanding of the underlying conduct proscribed by the

19 843 F.Supp. 2d 4, 16 (D.D.C. 2011)

20 Cruz-Jiminez, 977 F.2d at 102; Martinez v. Att'y Gen., 906

F.3d 281, 284 (3d Cir. 2018); MPC 5.01(2); cf. United States

v. Howard, 766 F.3d 414, 419-20 (5th Cir. 2014) ("This

requirement 'prevents the conviction of persons engaged in

innocent acts on the basis of a mens rea proved through

speculative inferences, unreliable forms of testimony, and past

criminal conduct.'”) (quoting United States v. Oviedo, 525

F.2d 881, 884-85 (5th Cir. 1976)).

21 Martinez, 906 F.3d at 285; United States v. Hayward, 359

F.3d 631, 644 (3d Cir. 2004) (Fuentes, J., dissenting in part)

("A 'substantial step' has been defined as something more than

mere preparation and less than the last act necessary before

commission.”).

22 Cf. Cruz-Jiminez, 977 F.2d at 102 n.11 (distinguishing the

element of intent from the substantial step inquiry).

13

crime being attempted.”

23

The substantial step must, in some

way, relate to the conduct criminalized by the statute.

24 Here,

that conduct requires the use of interstate facilities to entice a

minor to engage in sexual conduct.25

A post-enticement act like travel can constitute a

substantial step in violating § 2422(b). To do so, however, the

travel must relate to the defendant's enticing

communications.

26

This reasoning is implicit in most decisions

involving travel because, generally speaking, the travel relates

23 United States v. Farhane, 634 F.3d 127, 148 (2d Cir. 2011).

24 See United States v. Dworken, 855 F.2d 12, 19-20 (1st Cir.

1988) ("[I]n order to constitute a substantial step leading to

attempt liability, an actor's behavior must be of such a nature

that a reasonable observer, viewing it in context could

conclude beyond a reasonable doubt that it was undertaken in

accordance with a design to violate the statute.”) (emphasis

added) (internal quotation marks omitted).

25 18 U.S.C. § 2422(b).

26 We in no way mean to suggest that post-enticement acts are

the only way of proving a substantial step. Davis's

communications could be reasonably interpreted as a

substantial step to entice a minor, see United States v. Nestor,

574 F.3d 159, 161 (3d Cir. 2009), specifically his offer of gifts

to Marisa.

14

to a plan established by the interstate communication.27

In

these circumstances, traveling to an agreed upon location may

demonstrate that a defendant's communications were not

innocent but harbored criminal intent and that the defendant

was willing to go beyond mere planning. In other words,

traveling demonstrates that the communications were not "all

hot air.”28



Every other court of appeals that has addressed this

issue has held that travel can constitute a substantial step.29

This determination is consistent with our decision in

27 See, e.g., United States v. Young, 613 F.3d 735, 743 (8th Cir.

2010) (finding defendant's attempt to reserve motel room and

his travel to the motel and a park, all in accordance to plans

made over communications with minor, each constituted

substantial steps); United States v. Brand, 467 F.3d 179, 204

(2d Cir. 2006) ("Brand took a 'substantial step' . . . because

Brand actually went to . . . the meeting place that he had

established with [the minor].”).

28 See United States v. Gladish, 536 F.3d 646, 650 (7th Cir.

2008).

29 Brand, 467 F.3d at 204; Howard, 766 F.3d at 420-21;

United States v. Vinton, 946 F.3d 847, 852 (6th Cir. 2020);

Gladish, 536 F.3d at 648-49; Young, 613 F.3d at 743; United

States v. Goetzke, 494 F.3d 1231, 1236 (9th Cir. 2007);

United States v. Faust, 795 F.3d 1243, 1250 (10th Cir. 2015);

United States v. Gillis, 938 F.3d 1181, 1190 (11th Cir. 2019);

cf. Berk, 652 F.3d at 140-41 (proposing rendezvous is a

substantial step); United States v. Engle, 676 F.3d 405, 423

(4th Cir. 2012) (same); United States v. Clarke, 842 F.3d 288,

298 (4th Cir. 2016) (bringing candy to meetup location is

substantial step).

15

Tykarsky.

30

Although in that case we identified the defendant's

instant messages as a substantial step, we also indicated that

his travel to "the Holiday Inn according to the plan established

over the instant messages provide[d] the requisite 'measure of

objective evidence' corroborating his intent.”31

That is the

precise purpose of the substantial step inquiry.32



Requiring the substantial step to relate to the enticing

communications prevents criminalizing otherwise lawful

behavior and permitting improper inferences against a criminal

defendant. In United States v. Roman, the Sixth Circuit Court

of Appeals held that a substantial step was taken by the

defendant when he brought a flower and a candy bar to a

meetup location after the defendant was told to bring those

items to "break the ice” with the child.33

The court there

tethered its substantial step inquiry to the criminalized conduct.

Here, Davis's travel to the McDonald's parking lot

constitutes a substantial step. He and Marisa made plans over

text message to meet that day and have sex. His travel relates

directly to their conversation, corroborates his criminal intent,

and establishes that his communications were not merely hot

air.

30 446 F.3d at 469.

31 Id. at 469 (quoting United States v. Everett, 700 F.2d 900,

908 (3d Cir. 1983)).

32 See id.; see also Goetzke, 494 F.3d at 1237 (interpreting

Tykarsky to have concluded "that instant messages arranging a

meeting and appearing at the prearranged meeting place each

provided sufficient evidence of a substantial step”).

33 795 F.3d 511, 514, 518 (6th Cir. 2015).

16

Davis's possession of condoms also constitutes a

substantial step. The government often uses a defendant's

possession of condoms to establish a substantial step in §

2422(b) prosecutions.

34

However, juries must not be invited to

infer criminal intent by the mere possession of a widely

available prophylactic. Only when it relates to the offending

communications can the possession of condoms be said to

corroborate a defendant's criminal intent to violate § 2422(b).

To find otherwise would divorce the substantial step inquiry

from the offensive conduct and sanction the potential for

improper inferences against a defendant. We have no such

concerns about the prosecutor's theory of culpability here.

Davis assured Marisa over text message that she would not get

pregnant because he would bring protection. His possession of

condoms at the meetup location was consistent with their plan

and corroborates his criminal intent. It was entirely

appropriate for the prosecutor to argue that his travel and

possession of condoms were substantial steps in violation of §

2422(b).

D. Entrapment

Davis asserts that he was entrapped as a matter of law

into violating § 2422(b). He relies on his lack of a criminal

34 Compare Brand, 467 F.3d at 204 (condoms discussed over

communications); Faust, 795 F.3d at 1250 (same), with United

States v. Gagliardi, 506 F.3d 140, 144, 150-51 (2d Cir. 2007)

(condoms not tied to communications); United States v.

Strubberg, 929 F.3d 969, 975 (8th Cir. 2019) (same); United

States v. Myers, 575 F.3d 801, 809 (8th Cir. 2009) (same);

United States v. Murrell, 368 F.3d 1283, 1288 (9th Cir. 2004)

(same).

17

history, his attempts to avoid explicit sexual conversation with

Marisa, and Officer Block's tenacity in the sting operation.

The District Court determined that there was sufficient

evidence to submit the entrapment defense to the jury. When

a jury has rejected an entrapment defense, as it did here, we

"must view the evidence in the light most favorable to the

prosecution, and resolve all reasonable inferences therefrom in

its favor . . . [and] must uphold the jury's verdict unless no

reasonable jury could conclude beyond a reasonable doubt that

the defendant was predisposed to commit the offense for which

he was convicted.”35

"Entrapment occurs when a defendant who was not

predisposed to commit the crime does so as a result of the

government's inducement.”

36

We have loosely defined

predisposition "as the defendant's inclination to engage in the

crime for which he was charged, measured before his initial

exposure to government agents.”37 The affirmative defense of

entrapment has two elements: (1) government inducement of

the crime, and (2) lack of predisposition on the part of the

defendant to engage in the criminal conduct.38

If a defendant

makes a prima facie showing of both elements, the burden

shifts to the government to disprove the entire defense by

disproving one of the elements of the defense beyond a

35 United States v. Lakhani, 480 F.3d 171, 179 (3d Cir. 2007)

(quoting United States v. Jannotti, 673 F.2d 578, 598 (3d Cir.

1982)).

36 Jannotti, 673 F.2d at 597.

37 United States v. Fedroff, 874 F.2d 178, 182 (3d Cir. 1989)

(internal citation and footnote omitted).

38 United States v. Dennis, 826 F.3d 683, 690 (3d Cir. 2016).

18

reasonable doubt.

39 The government may prove predisposition

by showing "(1) an existing course of criminal conduct similar

to the crime for which the defendant is charged, (2) an already

formed design on the part of the accused to commit the crime

for which he is charged, or (3) a willingness to commit the

crime for which he is charged as evidenced by the accused's

ready response to the inducement.”

40



The government's evidence best fits into the third

method of showing Davis's predisposition, a willingness to

commit the crime. Davis's post-arrest statements regarding his

attraction to young girls is evidence that he was willing to

entice a minor. When Davis discovered he was corresponding

with a fourteen-year-old who posted a personals ad for sex, his

"ready response” acknowledged her age and asked if she

wanted to meet that day. Based on this evidence, a reasonable

jury could conclude beyond a reasonable doubt that Davis was

predisposed to entice a minor.

Davis's reluctance to engage in sexually explicit

conversation is not necessarily evidence of his nonpredisposition to violate § 2422(b). Rather, it may be evidence

of a misguided attempt to avoid incriminating himself. Section

2422(b) does not criminalize sexually explicit

39 United States v. El-Gawli, 837 F.2d 142, 145, 147 (3d Cir.

1988). It is not clear from the record how Davis satisfied his

burden of production to show government inducement.

However, the government did not object to the instruction at

the time and does not challenge Davis's prima facie defense

now.

40 Lakhani, 480 F.3d at 179 (quoting United States v. Gambino,

788 F.2d 938, 945 (3d Cir. 1986)).

19

communications.41

It criminalizes communications designed

to "persuade[], induce[], entice[], or coerce[]” a minor "to

engage in . . . sexual activity.”42

In other words, it

"criminalizes an intentional attempt to achieve a mental state—

a minor's assent” to engage in sexual conduct.43

Davis's text

messages are replete with attempts to entice Marisa to meet

him. Although he claims that his plan to meet her was

innocent, his argument is refuted by the evidence. He

confessed that he used Craigslist to have sex. He expressed

fear of getting caught by law enforcement. He groomed Marisa

by showering her with compliments, promising her gifts, and

bringing up sexual topics like her virginity, all while

insinuating that his ultimate goal was to engage in sexual

activity with her. Accordingly, we hold that he was not

entrapped as a matter of law.

E. Sentencing Enhancement

Davis argues that the District Court erred by applying a

sentencing enhancement for (1) misrepresenting his age and

(2) misrepresenting his sexual orientation, in an effort to

influence a minor to engage in sexual conduct. Because Davis

made no objection to his sentencing enhancement, we review

his sentence for plain error.44

"To demonstrate 'plain error' an

appellant bears the burden of proving that (1) the court erred

(2) the error was 'plain' at the time of appellate consideration

and (3) the error affected substantial rights, usually meaning

41 Tykarsky, 446 F.3d at 482.

42 18 U.S.C. § 2422(b).

43 United States v. Dwinells, 508 F.3d 63, 71 (1st Cir. 2007)

(emphasis omitted).

44 See United States v. Glass, 904 F.3d 319, 321 (3d Cir. 2018).

20

that the error 'must have affected the outcome of the district

court proceedings.'”45

An error is "plain” if it is clear or

obvious.46

A person's substantial rights are affected if there is

a reasonable probability that the District Court would have

imposed a lower sentence absent the error.

47

We hold that the

District Court did not plainly err by applying the enhancement.

U.S.S.G. § 2G1.3(b)(2) provides for a two-level

sentencing enhancement "[i]f (A) the offense involved the

knowing misrepresentation of a participant's identity to

persuade, induce, entice, coerce, or facilitate the travel of, a

minor to engage in prohibited sexual conduct; or (B) a

participant otherwise unduly influenced a minor to engage in

prohibited sexual conduct.” Davis's misrepresentations of his

age and sexual orientation best fit under § 2G1.3(b)(2)(A),

which prohibits "misrepresentation of a participant's identity,”

including a defendant's "name, age, occupation, gender, or

status.”48



First, Davis argues that the Guidelines do not permit an

enhancement for convictions involving sting operations.

However, he cites a Guideline Application Note that precludes

enhancements for convictions arising from sting operations

45 Id. (quoting United States v. Rosa, 399 F.3d 283, 293 (3d

Cir. 2005)).

46 United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006).

47 See Molina-Martinez v. United States, 136 S. Ct. 1338,

1347-48 (2016).

48 U.S.S.G. § 2G1.3, App. Note 3(A); cf. Young, 613 F.3d at

748-49 (misrepresenting identity for, inter alia, lying about

marriage and having children).

21

under § 2G1.3(b)(2)(B).49

The relevant provision, §

2G1.3(b)(2)(A), does not prohibit applying the enhancement to

convictions arising from sting operations.

Next, Davis argues that the enhancement should not

apply because he corrected the misrepresentation of his age

before his conversation with Marisa turned sexual. However,

Davis's conversation was steeped in sexual innuendo from the

start. Davis's later revelation of his real age does not undo his

initial misrepresentation, which can be reasonably understood

as an effort to make Marisa feel more comfortable as their

correspondence began and ultimately entice her to have sex.

Last, Davis contends that he did not misrepresent his

sexual orientation to entice Marisa and instead was attempting

to end communications with her. The government contends he

did this to assure Marisa he was not a sexual threat in his

continued effort to meet her. Because the government's theory

is reasonable, any error was not plain. Even if the court did

err, it did not affect Davis's substantial rights because the twopoint enhancement would still apply as a result of his

misrepresentation about his age.

For the foregoing reasons, we will affirm Davis’s

judgments of conviction and sentence.