United States v. Gravenhorst

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit

No. 03-2057

UNITED STATES OF AMERICA,

Appellee,

v.

CHARLES A. GRAVENHORST, a/k/a Justin Foxe, a/k/a Andrew
Graf, a/k/a agraf603, a/k/a justinnh, a/k/a justinnh2001,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella and Howard, Circuit Judges,

and Stearns,* District Judge.

Christopher R. Goddu for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.

July 3, 2006

*
Of the District of Massachusetts, sitting by designation.
 Per Curiam. Defendant Charles Gravenhorst was convicted

in March 2003 of four counts of using a computer in interstate

commerce to induce a minor to engage in illegal sex acts, see 18

U.S.C. § 2422(b); six counts of using a computer in interstate

commerce to transfer obscene matter to a minor, see 18 U.S.C. §

1470; and one count of using an interactive computer service for

carriage of obscene material in interstate commerce, see 18 U.S.C.

§ 1462. In July 2003, the district court ordered Gravenhorst to be

imprisoned for 10 concurrent terms of 96 months and one concurrent

term of 60 months. We subsequently affirmed his convictions on

direct appeal. See United States v. Gravenhorst, 377 F.3d 49 (1st

Cir. 2004) (per curiam).

In May 2005, the Supreme Court vacated this court's

judgment and remanded the case "for further consideration in light

of United States v. Booker." Gravenhorst v. United States, 544

U.S. 1029 (2005). We subsequently ordered supplemental briefing.

We also permitted Gravenhorst to file a counseled, oversized brief

as well as a pro se brief. In these briefs, Gravenhorst raised

several challenges to his convictions and sentence that are beyond

the scope of the Supreme Court's remand order. While not required

to address these issues, we may do so in our discretion. See

United States v. Estevez, 419 F.3d 77, 82 (1st Cir. 2005). Despite

the fact that some of these arguments were previously waived by not

being timely raised on appeal, given that we have complete

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briefing, we exercise the discretion to consider most of these

newly argued issues, although we ultimately conclude that they are

without merit and that Gravenhorst is not entitled to resentencing

under Booker.1

The parties are familiar with the record of the case.

Since we are writing primarily for them, we do not provide a

narrative summary of the evidence. We will address in turn each of

the assigned errors and refer to the evidence where necessary to

explain the disposition.

1. The government did not present sufficient
evidence of a violation of § 2422(b)
because there was no evidence that Gravenhorst
took a substantial step toward
committing the substantive offense.

Conviction for a violation of 18 U.S.C. § 2422(b)

requires the government to show that the defendant attempted to (1)

use a facility of interstate commerce (2) to knowingly persuade,

induce, entice, or coerce (3) an individual under the age of 18 (4)

to engage in illegal sexual activity. See United States v. Munro,

1
We decline, however, to exercise discretionary authority to
consider Gravenhorst's argument that the obscenity convictions must
be overturned on the ground that the images are not obscene as a
matter of law. The record for this claim is incomplete as the
images are not before us, and we are therefore without adequate
information to rule at this time. Also, we decline to consider
Gravenhorst's claim that trial counsel was ineffective for waiving
a sentencing argument. Infra at 8-9. As to this claim, there is
insufficient factual development, and we therefore see no reason to
deviate from our normal practice of requiring ineffective
assistance of counsel claims to be pursued through a collateral
proceeding under 18 U.S.C. § 2255. See United States v. Reyes, 352
F.3d 511, 517 (1st Cir. 2003).

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394 F.3d 865, 869 (10th Cir. 2005). Gravenhorst argues that the

government did not present sufficient evidence from which a jury

could conclude that he took a substantial step toward committing a

§ 2422(b) violation. He preserved this argument below, and

therefore we review it de novo, after analyzing the evidence in the

light most favorable to the verdict. United States v. Byrne, 435

F.3d 16, 22 (1st Cir. 2006).2

To prove attempt, the government must establish both an

intent to commit the substantive offense and a substantial step

toward its commission. See United States v. Burgos, 254 F.3d 1, 12

(1st Cir. 2001). A substantial step is something more than

preparation but something less than the last act necessary to

commit the crime itself. See United States v. LiCausi, 167 F.3d

36, 47 (1st Cir. 1999). "[O]ur caselaw shows, [however], that the

defendant does not have to get very far along the line toward

2
We have also considered Gravenhorst's two pro se arguments
challenging the indictment as it pertains to the § 2422(b)
violations. First, Gravenhorst claims that the indictment charges
a "non-offense" because it does not allege that he engaged in a
completed sex act or received consent from one of the young women
to have sex. We reject this argument. The indictment sets forth
the elements of the offense, including the allegation that
Gravenhorst used the internet to induce an underage person to
engage in illegal sexual activity. This is all that is required.
See United States v. Yefsky, 994 F.2d 885, 893 (1st Cir. 1993).
There is also no merit to Gravenhorst's argument that the
indictment did not adequately charge attempt under § 2422(b). The
lesser included offense of attempt need not be included in the
indictment where the indictment adequately pleads the substantive
offense. See United States v. Feinberg, 89 F.3d 333, 339 (7th Cir.
1996).

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ultimate commission of the object crime in order to commit the

attempt offense." See United States v. Doyon, 194 F.3d 207, 211

(1st Cir. 1999).

The evidence establishes that Gravenhorst sent each young

woman a sexually explicit message and asked each to meet him to

engage in sexual activity. If anyone had agreed to Gravenhorst's

proposition, all that remained was working out the details of where

and when to meet. "The main purpose of the substantial step

requirement is to distinguish between those who express criminal

aims without doing much to act on them and others who have proved

themselves dangerous by taking a substantial step down a path of

conduct reasonably calculated to end in the substantive offense."

Id. (internal citation omitted). A jury could reasonably conclude

that, once Gravenhorst moved from sending email messages referring

generally to sexual matters to asking young women to meet him to

engage in sexual activity, he engaged in a substantial step toward

inducing the women to engage in illegal sexual conduct.3

2. The obscenity convictions under 18 U.S.C. § 1470
& 18 U.S.C. 1462 should be dismissed because these

3
Gravenhorst also raises two challenges to the jury
instructions concerning the substantive § 2422(b) charges. He
claims that the court should have instructed that a substantive
violation of § 2422(b) requires proof of a completed sexual act or
an agreement to engage in sexual activity. Neither objection was
raised below, and we therefore review for plain error. See United
States v. Mendina-Martinez, 396 F.3d 1, 8 (1st Cir. 2004). Since
§ 2422(b) criminalizes attempts, a substantive violation clearly
does not require a completed sexual act.

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 statutes are unconstitutional after Lawrence v.
Texas, 539 U.S. 558 (2003).

Gravenhorst argues that the Supreme Court's decision

striking down an anti-sodomy law under the due process clause in

Lawrence renders obscenity laws unconstitutional. He contends that

Lawrence made unconstitutional any law that mandates a society's

own moral code. This argument was not raised below, and therefore

we review only for plain error. It suffices to say that other

circuits have concluded that obscenity laws survive Lawrence,

see United States v. Coil, 442 F.3d 912, 915-16 (5th Cir. 2006);

United States v. Extreme Assocs., 432 F.3d 150, 155-59 (3d Cir.

2005) and that no court has reached a contrary conclusion.

Therefore, the statutes are not plainly unconstitutional.

3. The district court abused its discretion by
permitting the introduction of prior bad act
evidence.

Gravenhorst contends that the district court abused its

discretion by permitting evidence that he had visited one of the

women to whom he sent sexually explicit images, Heidi K., and

attempted to have sexual relations with her. Heidi K. was 16 years

old at the time that Gravenhorst visited her, and therefore she was

of legal age to have sexual intercourse under Maine law. Since

intercourse with Heidi K. would not have been a crime under §

2422(b), Gravenhorst claims that this evidence was irrelevant and

should have been excluded.

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 The district court concluded that this "other wrongful

act" evidence was admissible because it showed Gravenhorst's intent

in sending sexually explicit images to young women to convince them

to have sexual relations with him. We review this ruling for an

abuse of discretion. See United States v. Landrau-Lopez, 444 F.3d

19, 23 (1st Cir. 2006).

Federal Rule of Evidence 404(b) permits admission of

evidence of other wrongful conduct to prove "motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of

mistake or accident." For evidence to be admissible under Rule

404(b), the evidence must have some special relevance other than

the defendant's propensity to commit a crime and must meet the

standards set forth Federal Rule of Evidence 403(b). See United

States v. Decicco, 370 F.3d 206, 211 (1st Cir. 2004).

The district court acted within its discretion by

admitting this evidence. Gravenhorst sent the same explicit

messages to Heidi K. as he did to the other women. That

Gravenhorst acted upon his email propositions to Heidi K. was

evidence of his intent in sending emails to the other women. See

Landrau-Lopez, 444 F.3d at 24 ("The other bad act need not be

identical to the crime charged so long as it is sufficiently

similar to allow a juror to draw a reasonable inference probative

of . . . intent."). Thus, the evidence had "special relevance"

under Rule 404(b).

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 We also do not find an abuse of discretion in the

district court's Rule 403 determination. While this evidence may

have harmed Gravenhorst's case, it did not do so unfairly. See

United States v. Candelaria-Silva, 162 F.3d 698, 705 (1st Cir.

1998). The evidence was important in establishing Gravenhorst's

motive for sending email messages to young women -- an essential

element of the charged offense.

4. Gravenhorst is entitled to resentencing under
advisory guidelines.

Gravenhorst was sentenced under the mandatory guideline

regime which the Supreme Court declared unconstitutional in United

States v. Booker, 543 U.S. 220 (2005). He acknowledges that he did

not argue to the district court that the guidelines were

unconstitutional. Therefore our review is for plain error. See

United States v. Antonakopoulos, 399 F.3d 68, 80-82 (1st Cir.

2005). Under this standard, a defendant must show "either in the

existing record or by plausible proffer that there is a reasonable

indication that the district judge might well have reached a

different result under advisory guidelines." United States v.

Jones, 432 F.3d 34, 45 (1st Cir. 2005) (internal citations

omitted).

Gravenhorst does not present an argument that he would

have presented additional facts to the district court, or that the

court indicated that it would be inclined to impose a more lenient

sentence if not bound by the guidelines. Rather, he contends that

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the case should be remanded for resentencing because the court

committed a legal error in calculating the guidelines sentencing

range by erroneously applying a cross-reference.

We have recognized that a substantive error in the

application of the guidelines will normally lead to a Booker

remand. See Antonakopoulos, 399 F.3d at 81. Here, however,

Gravenhorst affirmatively waived the guidelines argument that he

now seeks to make and stipulated to the sentencing range before the

district court.4 See United States v. Serrano-Beauvaix, 400 F.3d

50, 55 (1st Cir. 2005) (declining to consider Booker remand

argument based on claimed sentencing error, where the defendant

waived the argument in his plea agreement). Moreover, Gravenhorst

admits that, even if his sentencing argument were correct, the

sentencing range would be unaffected. In these circumstances, we

do not foresee any reasonable probability that Gravenhorst would

receive a more lenient sentence on remand.

Affirmed.

4
Gravenhorst also argues that his trial counsel provided
ineffective assistance of counsel by waiving his sentencing
argument.

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