FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-10642
Plaintiff-Appellee,
v. D.C. No.
CR-05-00325-JCM
PARIS CHERER,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted November 5, 2007*
San Francisco, California
Filed January 25, 2008
Before: John T. Noonan and M. Margaret McKeown,
Circuit Judges, and David G. Trager,** District Judge.
Opinion by Judge Trager;
Partial Concurrence and Partial Dissent by Judge Noonan
*The panel unanimously find this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
**Honorable David G. Trager, District Court Judge, Eastern District of
New York, sitting by designation.
1241
UNITED STATES v. CHERER 1245
COUNSEL
Mario D. Valencia, Henderson, Nevada, for the appellant.
Steven W. Myhre, Acting United States Attorney, Robert L.
Ellman, Appellate Chief, and Nancy J. Koppe, Assistant
United States Attorney, Las Vegas, Nevada, for the appellee.
OPINION
TRAGER, District Judge:
Paris Cherer was convicted under 18 U.S.C. § 2422(b) for
attempting to persuade, entice, or coerce a minor to engage in
sexual acts with him. He appeals his conviction on two
grounds. First, that the district court committed prejudicial
error by improperly instructing the jury, and second, that the
district court improperly admitted evidence of his past convic-
tion and other prior bad acts under Federal Rule of Evidence
404(b). He also appeals his sentence of 293 months on the
grounds that it is unreasonably long. This court has jurisdic-
tion pursuant to 18 U.S.C. § 3231 and 28 U.S.C. § 1291.
Cherer’s sentence is appealable under 18 U.S.C. § 3742(a).
We affirm the conviction and sentence.
Background
On July 8, 2005, FBI Special Agent Sue Flaherty was in an
America Online chat room in an undercover capacity, using
the AOL screen name “SusieBabyGirl.” And Cherer, using
the screen name “G8rwith8nGV,” initiated a chat with her.
1246 UNITED STATES v. CHERER
In the following weeks leading up to Cherer’s arrest,
Cherer, as “G8rwith8nGV,” and Agent Flaherty, as “Susie-
BabyGirl,” chatted online several times. During each chat
they discussed sex, e.g., “Susie’s” sexual experience, and
whether she would be willing to have a sexual relationship
with Cherer.
During three different chats, Cherer asked “Susie” her age,
and she replied fourteen each time. In particular, the first time
“Susie” told Cherer she was fourteen, Cherer replied, “cool,
fourteen is cool . . . .” At the time, Cherer was thirty-five.
The two also planned to meet in person. According to their
online chats, the purpose of this meeting was for “Susie” to
perform various sex acts on Cherer. When Cherer approached
the designated meeting place, FBI agents arrested him.
Following his arrest, Cherer made several statements to the
FBI, including that he thought “Susie” was eighteen, and that
he did not recall the chats in which “Susie” told him she was
fourteen.
Discussion
(1.)
Jury Instructions
The government charged Cherer under 18 U.S.C.
§ 2422(b), which provides,
Whoever, 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
UNITED STATES v. CHERER 1247
criminal offense, or attempts to do so, shall be fined
under this title and imprisoned not less than 10 years
or for life.
18 U.S.C. § 2422(b).
To explain the offense to the jury, the court delivered the
following two jury instructions. First, jury instruction twelve
stated,
The defendant is charged in the indictment with
Coercion and Enticement . . . . In order for the defen-
dant to be found guilty of that charge, the govern-
ment must prove each of the following elements
beyond a reasonable doubt[.]
First: defendant used a facility of interstate com-
merce;
Second: defendant intended to knowingly persuade,
induce, entice or coerce “Susie” into engaging in a
sexual act for which he could be prosecuted under
the laws of the State of Nevada; and
Third: the defendant did something which was a sub-
stantial step toward committing the crime, with all of
you agreeing as to what constituted the substantial
step.
It is a crime to attempt to persuade, induce, entice,
or coerce a minor into engaging in a criminal sexual
act for which a person may be criminally prosecuted
under the laws of the State of Nevada.
...
Under the laws of the state of Nevada, it is an
offense to attempt to commit Statutory Sexual
1248 UNITED STATES v. CHERER
Seduction. Nevada law defines “sexual seduction” as
“[o]rdinary sexual intercourse, cunnilingus or fellatio
committed by a person 18 years of age or older with
a person under the age of 16 years.”
Second, jury instruction thirteen stated,
The defendant is charged with Coercion and Entice-
ment. Title 18, United States Code, Section 2422(b)
provides, in pertinent part, that a person is guilty of
violating it if that person: who [sic], using . . . any
facility or means of interstate . . . commerce . . .
knowingly persuades, induces, entices, or coerces
any individual who has not attained the age of 18
years, to engage in . . . any sexual activity for which
any person can be charged with a criminal offense,
or attempts to do so.
Cherer asked the court to add the following instruction: “In
order to find the defendant guilty you must find beyond a rea-
sonable doubt that the defendant actually believed “Susie”
was under the age of 16 years [the age of consent in
Nevada].” The court declined to do so.
On appeal, Cherer argues that the court committed prejudi-
cial error by refusing to deliver his proposed instruction
because, according to Cherer, the instructions as given pre-
vented him from effectively presenting his defense to the jury.
This court reviews de novo “whether the district court’s
instructions omitted or misstated an element of the charged
offense.” United States v. Stapleton, 293 F.3d 1111, 1114 (9th
Cir. 2002) (citing United States v. Knapp, 120 F.3d 928, 930
(9th Cir. 1997)). “In reviewing jury instructions, the relevant
inquiry is whether the instructions as a whole are misleading
or inadequate to guide the jury’s deliberation.” United States
v. Frega, 179 F.3d 793, 807 n.16 (9th Cir. 1999) (citing
United States v. Moore, 109 F.3d 1456, 1465 (9th Cir. 1997)).
UNITED STATES v. CHERER 1249
And “[t]he trial court has substantial latitude so long as its
instructions fairly and adequately cover the issues presented.”
Id. (citing United States v. Garcia, 37 F.3d 1359, 1364 (9th
Cir. 1994)).
[1] Under 18 U.S.C. § 2422(b), when a defendant, like
Cherer, has targeted an adult decoy rather than an actual
minor, the Ninth Circuit requires that the defendant have
believed the target was a minor. United States v. Meek, 366
F.3d 705, 718 (9th Cir. 2004) (“[I]t is apparent that the term
‘knowingly’ refers both to the verbs — ‘persuades, induces,
entices, or coerces’ — as well as to the object — ‘a person
who has not achieved the age of 18 years.’ ”) (citations omit-
ted) (interpreting 18 U.S.C. § 2422(b) in a case involving a
sting operation). Thus, Cherer’s belief regarding “Susie’s”
age is an element of the crime.1
[2] The government argues that jury instructions twelve and
thirteen adequately described the requisite state of mind. We
disagree. Even if not inaccurate, the instructions did not
explain that the jury was required to find that Cherer believed
1
For example, in § 2422(b) prosecutions involving government sting
operations, the Eleventh Circuit suggests using the following instruction,
which is similar to the one Cherer proposed,
The Defendant can be found guilty of that offense only if all of
the following facts are proved beyond a reasonable doubt: First:
That the Defendant knowingly used [the mail] [a computer]
[describe other interstate facility as alleged in indictment] to
attempt to persuade, induce, entice [or coerce] an individual
under the age of eighteen (18) to engage in sexual activity, as
charged; Second: That the Defendant believed that such individ-
ual was less than eighteen (18) years of age; Third: That if the
sexual activity had occurred, the Defendant could have been
charged with a criminal offense under the law of [identify the
state]; and Fourth: That the Defendant acted knowingly and will-
fully.
Eleventh Circuit Pattern Jury Instructions, Criminal Cases (2003)
(emphasis added), available at www.ca11.uscourts.gov/documents/jury/
crimjury.pdf.
1250 UNITED STATES v. CHERER
that the target, “Susie,” was a minor. In other words, neither
appropriately connected the requisite state of mind — knowl-
edge — with the statute’s object — a minor victim.
[3] In this case, however, omitting an element from the jury
instructions constituted harmless error. “Jury instructions,
even if imperfect, are not a basis for overturning a conviction
absent a showing that they prejudiced the defendant.” Frega,
179 F.3d at 807 n.16 (citing United States v. de Cruz, 82 F.3d
856, 864-65 (9th Cir. 1996)). Erroneous jury instructions con-
stitute harmless error if it is “clear beyond a reasonable doubt
that a rational jury would have found the defendant guilty
absent the error.” United States v. Gracidas-Ulibarry, 231
F.3d 1188, 1197 (9th Cir. 2000) (quoting Neder v. United
States, 527 U.S. 1, 18 (1999)). Omitting an element is harm-
less if “the omitted element [is] uncontested and supported by
overwhelming evidence.” Gracidas-Ulibarry, 231 F.3d at
1197 (citing Neder, 527 U.S. at 17). The Supreme Court has
noted, however, that a jury instruction error would not be
harmless if a defendant “contested the omitted element and
raised evidence sufficient to support a contrary finding.”
Neder, 527 U.S. at 19.
[4] The government’s evidence overwhelmingly shows that
Cherer believed “Susie” was fourteen years old. During three
different online chats, Cherer asked “Susie” how old she was,
and she replied that she was fourteen each time. Specifically,
during their initial chat, when “Susie” told Cherer she was
fourteen, Cherer replied, “cool, fourteen is cool . . . .” These
explicit references to “Susie’s” age are sufficient to conclude
that Cherer held the requisite state of mind.
In addition, however, all of the following facts demonstrate
that Cherer believed he was communicating with a minor.
First, on July 8, 2005, when Cherer wanted to call “Susie,”
she told him she was afraid her mother would answer. Cherer
offered to hang up if her mother answered. On July 18, 2005,
after “Susie” gave Cherer her phone number, her phone rang,
UNITED STATES v. CHERER 1251
and when an adult male FBI agent answered, the caller hung
up. The next day, July 19, 2005, “Susie” apologized to Cherer
for not picking up the phone and told him her father had
answered. Second, on July 18, 2005, “Susie” sent Cherer a
photograph, purportedly of “Susie,” but actually of an FBI
agent, taken when she was around fourteen years old. Third,
on at least two occasions, Cherer asked “Susie” whether she
would be allowed out of the house to meet him. Once, she
told him she would have a friend create an alibi for her if she
left. Another time Cherer asked “Susie” if her mother kept her
on “lock down.” Fourth, on one occasion, when discussing
plans to meet, “Susie” told Cherer she could not get together
that night because her friend’s mother had gotten them tickets
to a movie. And fifth, when Cherer asked “Susie” for her
street address, she said she did not want to give it to him
because she did not want her parents to find out she had met
him. In sum, these facts portray “Susie” as a fourteen-year-old
teenager, under close parental supervision, and nothing about
the communications between Cherer and “Susie” indicates
that Cherer believed otherwise.
On appeal, Cherer argues that he thought he and “Susie”
were roleplaying. At trial, however, Cherer’s counsel scarcely
raised this roleplaying defense. On the contrary, defense
counsel argued in closing that: (1) Cherer’s post-arrest state-
ments were unreliable because they were not recorded; (2)
someone other than Cherer, but using Cherer’s screen name,
was responsible for the enticing communications to “Susie";
(3) the government manipulated the transcripts of the online
chats between Cherer and “Susie"; (4) Cherer did not believe
“Susie” was under sixteen; and (5) Cherer did not take a sub-
stantial step toward the commission of the crime. This court
will not normally entertain arguments, like Cherer’s roleplay-
ing defense, raised for the first time on appeal. See, e.g.,
Peterson v. Highland Music, Inc., 140 F.3d 1313, 1321 (9th
Cir. 1998) (applying the “ ‘general rule’ against entertaining
arguments on appeal that were not presented or developed
before the district court”).
1252 UNITED STATES v. CHERER
[5] Nonetheless, even if we were to consider Cherer’s role-
playing defense, it is unpersuasive. The only evidence Cherer
invokes to prove that he thought he was roleplaying are his
own post-arrest statements, many of which undercut rather
than support his claim. After being arrested, Cherer told the
FBI that: (1) he thought “Susie” was eighteen years old
because of the way she talked; (2) the girl in the photograph
“Susie” sent to him looked to be in her twenties; (3) he did
not recall the chats in which “Susie” told him she was four-
teen; and (4) if he had known “Susie” was fourteen he would
not have wanted to meet her. At no point did Cherer say or
even indicate that he believed he had been roleplaying with an
adult. Moreover, Cherer’s statements suggest that he thought
“Susie” was a real person, but that he did not know her age.
For example, he said he did not recall “Susie” telling him
three times that she was fourteen. Roleplaying, on the other
hand, would have required Cherer to know that “Susie” was
a fiction created by an adult. Indeed, if Cherer believed he
was roleplaying, it would have been unnecessary for him to
deny being told “Susie’s” age — being told her “age” would
have been part of the act. Thus, the evidence would not have
supported a roleplaying defense. See, e.g., Gracidas-Ulibarry,
231 F.3d at 1197-98 (finding that the court’s erroneous omis-
sion of the intent element from the jury instructions was
harmless because overwhelming evidence supported a finding
of intent — even though the defendant claimed he was asleep,
and could not have had the requisite intent).
[6] In sum, because overwhelming evidence proves that
Cherer believed “Susie” was fourteen, the court’s failure to
give a clear instruction was harmless.
(2.)
Evidence of Cherer’s Prior Conviction and AOL
Complaints
In 2001, Cherer was convicted in Nevada state court of
lewdness with a child under fourteen, annoyance of a minor,
UNITED STATES v. CHERER 1253
and contributing to the delinquency and neglect of children.
He committed this crime by meeting two girls — ages eleven
and twelve — in an AOL chat room, arranging a meeting with
them, bringing them to his house, and touching one of them
sexually. When Cherer began his relationship with “Susie,” he
was serving probation for the 2001 conviction.
Moreover, on April 2, 2005, and again on July 9, 2005,
AOL received complaints (“AOL complaints”) from users
alleging that another user, screen name “G8rwith8nGV” —
Cherer’s screen name — had communicated with them using
inappropriate sexual language. After each complaint, AOL
blocked Cherer’s access, and each time Cherer called AOL to
have it restored.
After a hearing, the district court admitted evidence of
Cherer’s prior conviction and the AOL complaints pursuant to
FRE 404(b).
[7] This Court reviews a district court’s admission of evi-
dence, including the decision that probative value exceeds
unfair prejudice, for an abuse of discretion. See United States
v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007) (en banc) (citing
United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002)).
Harmless errors do not warrant reversal. See Romero, 282
F.3d at 688 (citing United States v. Derington, 229 F.3d 1243,
1247 (9th Cir. 2000)).
According to Federal Rule of Evidence 404(b):
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or acci-
dent.
1254 UNITED STATES v. CHERER
Fed. R. Evid. 404(b). The Ninth Circuit has held that evidence
may be admitted pursuant to 404(b) if “(1) the evidence tends
to prove a material point; (2) the other act is not too remote
in time; (3) the evidence is sufficient to support a finding that
defendant committed the other act; and (4) (in certain cases)
the act is similar to the offense charged.” Romero, 282 F.3d
at 688 (quoting United States v. Chea, 231 F.3d 531, 534 (9th
Cir. 2000)). If evidence satisfies Rule 404(b), “the court must
then decide whether the probative value is substantially out-
weighed by the prejudicial impact under Rule 403.” Romero,
282 F.3d at 688 (quoting Chea, 231 F.3d at 534). Indeed, as
the Ninth Circuit recently articulated,
Rule 404(b) is a rule of inclusion — not exclusion —
which references at least three categories of other
“acts” encompassing the inner workings of the mind:
motive, intent, and knowledge. Once it has been
established that the evidence offered serves one of
these purposes . . . the “only” conditions justifying
the exclusion of the evidence are those described in
Rule 403: unfair prejudice, confusion of the issues,
misleading the jury, undue delay, waste of time, or
needless presentation of cumulative evidence.
Curtin, 489 F.3d at 944.
Cherer argues that Rule 404 or 403 should have barred evi-
dence of his prior conviction and the AOL complaints. We
disagree. The district court properly exercised its discretion to
admit both pieces of evidence.
[8] First, Cherer’s prior conviction tends to prove his intent
and his modus operandi. Cherer has argued that he lacked the
requisite intent because he did not believe “Susie” was four-
teen. Moreover, following his arrest, Cherer told the FBI that
if he had known “Susie” was fourteen he would not have
wanted to meet her.2 Cherer’s prior conviction helps to prove
2
Cherer’s statements to the FBI were admitted at trial through the testi-
mony of a prosecution witness. Defense counsel did, however, rely on
Cherer’s statements in closing argument to prove lack of intent.
UNITED STATES v. CHERER 1255
otherwise. Cherer was previously convicted for meeting two
minor girls — ages eleven and twelve — in an online chat
room, enticing them to his home, and engaging one of them
in kissing, touching, and petting. The facts of his prior convic-
tion are strikingly similar to those of his current conviction.
In an analogous case, this court held that,
evidence [that] described factually similar incidents
that center on the inducement of a minor . . . was
highly probative of [the defendant’s] intent and
modus operandi with respect to the present act. In
both instances, [the defendant] contacted a minor . . .
over IM for the purpose of soliciting sexual activity,
[and] arranged to meet . . . . The factual difference
between the two acts is that, in this case, [the defen-
dant] followed his intentions to completion; this dif-
ference does not warrant exclusion under Rule
404(b).
United States v. Dhingra, 371 F.3d 557, 566-67 (9th Cir.
2004) (applying Rule 404(b) in the context of an 18 U.S.C.
§ 2422(b) case). Similarly, Cherer’s prior conviction makes it
more likely that he harbored the requisite intent with regard
to “Susie.” See, e.g., id. at 565 (noting that 404(b) evidence
“was all the more relevant given [defendant]’s denial of his
criminal intentions”). The only difference between Cherer’s
prior conviction and the present case is that the prior convic-
tion involved targeting an actual minor rather than an adult
decoy. As in Dhingra, this difference does not warrant exclu-
sion under Rule 404(b).
[9] Second, the court properly admitted the AOL com-
plaints. Each complaint alleges that Cherer communicated in
a sexually graphic manner. The language used in these offen-
sive communications closely resembles that used in the entic-
ing communications to “Susie.” For example, the AOL
complaints allege Cherer asked one AOL user, “[E]ver given
a blow job?” and offered another two hundred dollars in
1256 UNITED STATES v. CHERER
exchange for oral sex. Similarly, Cherer asked “Susie,”
“[E]ver given a BJ?” and offered to buy her thong underwear
in exchange for oral sex. Thus, the complaints tend to prove
Cherer’s intent and plan to use AOL to make enticing, sexu-
ally graphic communications. That the ages of the AOL users
with whom Cherer communicated offensively are unknown
diminishes the evidentiary weight of the complaints, not their
admissibility.
[10] The AOL complaints also tend to prove identity,
although the court chose not to rely on this basis for admission.3
The complaints allege that Cherer used offensive language
similar to the language used with “Susie.” At trial, Cherer
based his defense, in part, on the theory that someone else had
used his screen name to communicate with “Susie.” Evidence
that Cherer used similar language with other AOL users
undercuts that defense. Thus, even were we to find that the
court erred by admitting the AOL complaints to prove
Cherer’s intent or plan, the error would be harmless because
the court could have properly admitted the complaints to
prove identity. See, e.g., United States v. McCollum, 732 F.2d
1419, 1424 (9th Cir. 1984) (finding that the trial court’s error
in admitting evidence for the stated purpose was harmless
because the evidence could have been admitted for another
purpose); United States v. Mehrmanesh, 689 F.2d 822, 831
n.10 (9th Cir. 1982) (same).
3
The government has argued, at a pre-trial hearing and on appeal, that
the AOL complaints were probative of identity, but the court never explic-
itly named identity as a proper purpose of admission. Instead, the court
stated that the AOL complaints tend to prove Cherer’s intent and plan.
Moreover, in crafting jury instruction nineteen, which explained for which
purposes the jury could consider the 404(b) evidence, the court explicitly
eliminated identity from the list of permissible purposes. The government
agreed to the final formulation of the limiting instruction, which did not
reference identity, but provided instead that the jury may consider the
404(b) evidence “only as it bears on the defendant’s intent, preparation,
plan, knowledge, absence of mistake and for no other purpose.”
UNITED STATES v. CHERER 1257
[11] Additionally, Cherer’s argument that the district court
did not engage in the proper 403 balancing lacks merit. At a
pre-trial hearing, the court considered all the 404(b) evidence
the Government offered. The court admitted the prior convic-
tion and AOL complaints, but barred other evidence because
it was too prejudicial, demonstrating that it conducted the 403
balancing. See, e.g., United States v. Rrapi, 175 F.3d 742, 749
(9th Cir. 1999) (“In allowing Rule 404(b) evidence, a district
court is not required to recite the corresponding Rule 403 bal-
ancing analysis for the record. It is enough that this court can
conclude, based on a review of the record, that the district
court considered Rule 403’s requirements.”) (internal cita-
tions and quotations omitted). The evidence the court did
admit was probative of intent, plan, and identity — issues
made relevant by the defense. Moreover, the risk of unfair
prejudice, which the court reduced by delivering a limiting
instruction, did not substantially outweigh the probative value
of the evidence. Fed. R. Evid. 403; see also, e.g., Dhingra,
371 F.3d at 566-67 (affirming the district court’s admission of
evidence of the defendant’s online chats with other girls to
prove intent, and noting that “the danger of undue prejudice
is low. The district court cabined potential prejudice by . . .
explicitly instructing the jury to consider the testimony ‘only
as it bears on the defendant’s intent. . .’ ”).
(3.)
Cherer’s Sentence
We review Cherer’s within-Guidelines sentence of 293
months for reasonableness, United States v. Booker, 543 U.S.
220, 261 (2005), which, as the Supreme Court recently
declared, requires a two-step analysis. Gall v. United States,
128 S. Ct. 586, 597 (2007). First, we must “ensure that the
district court committed no significant procedural error, such
as failing to calculate (or improperly calculating) the Guide-
lines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on
1258 UNITED STATES v. CHERER
clearly erroneous facts, or failing to adequately explain the
chosen sentence . . . .” Id. If it is determined that the district
court’s decision was procedurally sound, we must then “con-
sider the substantive reasonableness of the sentence imposed
under an abuse of discretion standard.” Id.
[12] In this case, the district court committed no significant
procedural error. Cherer’s sentence is within, though at the
top of, the Guidelines range of 235 to 293 months. Cherer has
not challenged the Guidelines calculation. At the sentencing
hearing, the judge properly noted that the Guidelines are advi-
sory, and that the factors provided by 18 U.S.C. § 3553(a)
would guide his analysis. The record reflects that the judge
considered each relevant sentencing factor. He did not explic-
itly reference them all, but the law does not require him to do
so. See United States v. Knows His Gun, 438 F.3d 913, 918
(9th Cir. 2006) (noting that the requirement to consider the
§ 3553(a) factors “does not necessitate a specific articulation
of each factor separately, but rather a showing that the district
court considered the statutorily-designated factors in imposing
a sentence”); see also, e.g., United States v. Kimbrough, 125
S. Ct. 558, 575 (2007) (stating that the district court properly
“addressed the relevant § 3553(a) factors”) (emphasis added).
Cherer has not argued that the sentencing judge relied on erro-
neous facts. And we are satisfied that the sentencing judge
provided an adequate explanation for the sentence.
[13] Since the district court committed no procedural error,
the only question remaining is “whether the sentence was rea-
sonable — i.e., whether the District Judge abused his discre-
tion in determining that the § 3553(a) factors supported” a
sentence at the top of the Guidelines range. Gall, 128 S. Ct.
at 600. This review requires deference to the district court’s
decision, and should not resemble a de novo review. Id. Even
though Gall dealt with a below-Guidelines sentence, the
Court clearly stated that this deferential standard of review
applies to “all sentencing decisions — whether inside or out-
side the Guidelines range.” Id. at 596. In addition, “[i]f the
UNITED STATES v. CHERER 1259
sentence is within the Guidelines range, the appellate court
may, but is not required to, apply a presumption of reason-
ableness.” Id. at 597 (citing Rita v. United States, 127 S. Ct.
2456, 2462 (2007)). The Ninth Circuit has not applied this
presumption, see, e.g., United States v. Zavala, 443 F.3d
1165, 1170-71 (9th Cir. 2006), but we note that “in the ordi-
nary case, the Commission’s recommendation of a sentencing
range will ‘reflect a rough approximation of sentences that
might achieve § 3553(a)’s objectives.’ ” Kimbrough, 128
S. Ct. at 562-63 (quoting Rita, 127 S. Ct. at 2464-65).
[14] Nevertheless, even without presuming that a within-
Guidelines sentence is reasonable, we cannot say that
Cherer’s within-Guidelines sentence is unreasonable. The dis-
trict court considered the appropriate factors, and assigned
reasonable weight to each. As the Supreme Court noted in
Gall, “[t]he sentencing judge is in a superior position to find
facts and judge their import under § 3553(a) in the individual
case. The judge sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and gains
insights not conveyed by the record.” Gall, 128 S. Ct. at 597
(quoting Brief for Federal Public and Community Defenders
et al. as Amici Curiae 16). Specifically, the record clearly
establishes that the judge considered the circumstances of
Cherer’s crime and the nature of his prior offense for which
he was serving probation. The court properly considered
Cherer’s argument that the lack of a victim should weigh in
favor of a shorter sentence, but rejected it because, while a
fortunate circumstance, it did not make Cherer’s conduct less
blameworthy. Even though it would have been impossible for
Cherer to complete his attempted crime because his target was
a decoy, he still exhibited a proclivity to commit this sort of
crime, and an inability to control his criminal, sexual impulses
— factors that a sentencing judge may reasonably take into
account. The court also considered the facts of Cherer’s prior
crime, which, like his current crime, involved Cherer’s use of
the internet to entice a minor into an illegal sexual relation-
ship. For his prior crime, at the request of the victims’ parents,
1260 UNITED STATES v. CHERER
the Nevada court sentenced Cherer to probation. The dissent
argues that the district court should have given more consider-
ation to why the state court sentenced Cherer to probation
because state courts have more experience dealing with sex
crimes than do federal courts. But neither the relative dearth
of federal sex crime prosecutions nor the leniency of Cherer’s
state sentence require the district court to discount the weight
of Cherer’s prior crime when determining his current sen-
tence. Rather, because Cherer committed his current crime
while serving probation for a prior, similar crime — and thus
did not take advantage of the state court’s leniency — it was
reasonable for the district court to conclude that a lengthy
prison sentence was necessary to protect the public.
[15] The dissent relies on Kimbrough to criticize the district
court’s failure to consider that Cherer’s sentence of almost
twenty-five years for an attempt significantly exceeds many
sentences available for violent, completed sex crimes like
rape. In Kimbrough, the Supreme Court held that a district
judge may reasonably impose a below-Guidelines sentence
for an offense involving crack cocaine because of the long-
criticized disparity, with racial implications, between sen-
tences involving crack cocaine and those involving powder
cocaine. Kimbrough, 125 S. Ct. at 576. But Kimbrough cannot
be read to require such a comparison, and certainly not in a
case like Cherer’s that does not involve a drug offense.
Indeed, Gall points out that for drug offenses the Guidelines
are not tied to empirical evidence, but are instead keyed to
“the statutory mandatory minimum sentences that Congress
established for such crimes.” Gall, 128 S. Ct. at 594 n.2. Kim-
brough addressed the effect of this distinction “on a district
judge’s authority to deviate from the Guidelines range in a
particular drug case.” Id. Accordingly, the district judge who
sentenced Cherer was not required to consider the much more
lenient sentences available for other violent and arguably
more heinous sex offenses, nor does the disparity render
Cherer’s sentence unreasonable. If it did, a large number of
the Guidelines would have to be found unreasonable because
UNITED STATES v. CHERER 1261
many of them recommend more severe punishments for non-
violent offenses than for violent ones. Moreover, with respect
to Cherer’s crime — i.e., using the internet in an attempt to
entice a minor into an illegal sexual relationship — it is not
unreasonable for the Guidelines to advise a sentence commen-
surate with or even exceeding sentences for violent, com-
pleted crimes when he has previously committed a similar
crime. And whether the attempted sexual abuse of a fourteen-
year-old girl by a thirty-five-year-old man is less morally rep-
rehensible than a completed rape of an adult in every circum-
stance is a judgment about which reasonable minds can differ.
In sum, although we believe the almost-twenty-five year
sentence may be unduly harsh, we are not the sentencing
judges. Indeed, “[t]he fact that the appellate court might rea-
sonably have concluded that a different sentence was appro-
priate is insufficient to justify reversal of the district court.”
Gall, 128 S. Ct. at 597. Thus, we do not conclude that the sen-
tence was unreasonable.
The conviction and sentence are
AFFIRMED.
NOONAN, Circuit Judge, concurring and dissenting:
I concur in affirming Cherer’s conviction. I dissent as to his
sentencing.
Gall v. United States, 128 S.Ct. 586 (2007), and Kimbrough
v. United States, 128 S.Ct. 558 (2007), have clarified certain
uncertainties and in doing so made crystal clear the role of the
Sentencing Guidelines and the respect owned them.
The Guidelines are the starting point for the district judge
deciding on a sentence. Gall, 128 S.Ct. at 596; Kimbrough,
1262 UNITED STATES v. CHERER
128 S.Ct. at 574. The Guidelines are a benchmark for the sen-
tencing judge. Id. The Guidelines must be taken into account.
At the same time, the Guidelines are completely advisory,
not mandatory. Gall, 128 S.Ct. at 594; Kimbrough, 128 S.Ct.
at 564, 569. The district judge should not presume that their
range is reasonable. Gall, 128 S.Ct. at 596-97. For the sen-
tencing judge, the Guidelines are only one factor to be consid-
ered in weighing whether a sentence will achieve the goals set
by 18 U.S.C. § 3553(a)(2). Kimbrough, 128 S.Ct. at 564. The
sentence is to be “individualized.” Gall, 128 S.Ct. at 597.
These clarifications are comprehensive. More particularly,
Kimbrough holds that the district judge in that case was right
to take into account the disparity in sentences involving crack
cocaine and those involving powder cocaine and by such
comparison to determine that the Guidelines on crack were
not reasonable. Kimbrough, 128 S.Ct. at 564. By analogy, this
kind of comparison of sentences may be applied in other cases
where the reasonableness of the sentence is at issue.
On review of the sentence, the principal question is its rea-
sonableness. Id. The reviewing court will reverse only for
abuse of discretion, not for disagreement with the district
court’s considered conclusion. Gall, 128 S.Ct. at 597. The
reviewing court may but need not consider the Guidelines
range reasonable. Id.
Apart from these holdings as to the place of the Guidelines,
Gall and Kimbrough are instructive on the procedural steps
that the sentencing judge must take. After giving both parties
an opportunity to argue for whatever sentence they deem
appropriate, the district judge should then consider all of the
§ 3553(a) factors to determine whether they support the sen-
tence requested by a party. Id. at 596. In so doing, he may not
presume that the Guidelines range is reasonable. Id. at 596-97.
He must make an individualized assessment based on the
facts presented. Id. at 597.
UNITED STATES v. CHERER 1263
To turn to the case at hand, Cherer was convicted of the
crime of attempting to seduce a minor on the internet.
Although the statute under which he was convicted enumer-
ates “coercion” among the acts prohibited by it, no coercion
by Cherer was shown. His crime was committed by words in
the imaginary world of a chat room.
The district court in the sentencing gave counsel and the
defendant opportunity to address the court on the sentence.
The district court stated that the Sentencing Guidelines were
advisory. The district court stated that the court’s purpose in
sentencing was to achieve the purposes of 18 U.S.C.
§ 3553(a)(2). On the face of the proceedings, they conformed
to the law. They, however, did not.
Tension may seem to exist between the table of points pro-
vided by the Guidelines and an individualized sentence. If a
sentence is to be “individualized,” see Gall, 128 S.Ct. at 597,
the sentence is to be shaped to the specific details of the
offense of conviction and the specific characteristics of the
defendant. The defendant is not a convenient abstraction such
as “a pedophile” but a human being who cannot be so summa-
rily categorized. It may take the sentencing judge effort and
empathy to address the person before him. The judge has no
choice if he is to follow the law.
In two respects, the sentencing court did not do what the
law required. First, it did not consider at all that Cherer
responded to a temptation set up by the government and that
his response to the temptation was ineffective. Of course,
Cherer was not entrapped in a legal sense: he was ready and
willing to commit the crime. Of course, the law permits an
attempt to be punished as severely as a completed crime.
Nonetheless, in weighing the sentence, it would be unreason-
able for the sentencing court not to take some account of these
facts.
In sentencing Cherer, the district court declared its indiffer-
ence to state sentences for the same offense and, in particular,
1264 UNITED STATES v. CHERER
its indifference to what Cherer’s state crime consisted of or
why the state court had sentenced him to probation for it. That
he was a violator of probation was enough for the court. But
Cherer’s federal sentence was increased not for violation of
probation but because he was categorized as a sex offender
under state law. The state crime increased his score on the
Guidelines’ chart by eight and so materially increased the
range of the federal sentence when that chart was the judge’s
guide.
The Sentencing Commission collects statistics on sentenc-
ing in the federal courts. It collects all cases involving sexual
offenses whether they involved rape, sex with a minor or
solicitation of a minor. The rationale of this grouping must be
that there are few sexual offenses that are federally prose-
cuted. In 2006, there were, nationally, 256; in this circuit,
there were 61. United States Sentencing Commission, Office
of Policy Analysis, 2006 Datafile. The paucity of prosecution
(which characterizes earlier years, too) is accounted for by the
limited number of places under federal jurisdiction where sex
crimes could occur. The number has increased only with the
arrival of the internet and federal prosecutions for its use.
That means that it is the states and the state courts that have
substantial experience in dealing with sex offenses. Depend-
ing on the case, what was done in a state proceeding will be
relevant to the reasonableness of the federal sentence. The
sentencing court here needed to know what Cherer had done
and why the state court had put him on probation. Without
this information, the addition of eight points to Cherer’s point
score was an act that could have been performed by a
machine; it was not a judicial assessment of the individual
before the court.
The eight point enhancement, plus two points for his use of
a computer, gave Cherer a point score of 34. Rape within fed-
eral jurisdiction would yield a score of 30 and a sentence
range of 8-17.5 years. Cherer was sentenced to just under
UNITED STATES v. CHERER 1265
twenty-five years. Sentencing Guidelines or application of
them are not rational if they yield a sentence for Cherer’s
crime greater than that for rape. To take a concrete example
that I am familiar with, in United States v. James, 980 F.2d
1314 (9th Cir. 1992), the defendant in the early morning
entered the home of the victim and raped her; the sanctity of
the home and the chastity of the victim were both violently
violated. The defendant’s sentence was seven years and three
months’ imprisonment and supervised release for five years.
It is difficult for me to believe that Cherer’s clumsy effort to
obtain forbidden sex was over three times more heinous than
that of James.
The observation may be made that the Guidelines provide
sentencing ranges for several nonviolent crimes that are
greater than its ranges for violent crimes. Two answers may
be offered. One, the comparison in Cherer’s case is made
between punishments within the general category of sex
offense. Second, the Guidelines may be unreasonable in other
instances, but to determine that is not our business here.
Specifically in this case the district court erred in not look-
ing at the circumstances of the crime and in not taking into
account the nature of the offense for which Cherer was on
probation.
A majority of the judges appear to agree that Cherer’s sen-
tence was “unduly harsh.” But the court finds the sentence not
“unreasonable.” That is such a fine distinction as not to be
readily comprehensible.
The trial judge is “always in a superior position” to know
the facts. Gall, 128 S.Ct. at 598. That position does not make
presumptively reasonable the sentence he gives. The trial
judge will normally be able to follow the procedural rules.
That, too, doesn’t make his sentence presumptively reason-
able.
1266 UNITED STATES v. CHERER
It is the obligation of this court to review a sentence for
“substantive reasonableness.” Id. How is such reasonableness
determined? One way is by comparing sentences of crimes
falling in roughly the same generic area. Kimborough is
exemplary not exclusive in showing how such comparison
works.
Dissenting from the survival of the Guidelines in United
States v. Booker, 543 U.S. 220, 312 (2005), Justice Scalia
observed:
At the other extreme, a court of appeals might handle
the new workload by approving virtually any sen-
tence within the statutory range that the sentencing
court imposes, so long as the district judge goes
through the appropriate formalities, such as express-
ing his consideration of and disagreement with the
Guidelines sentence.
If such becomes the course of review in the court of
appeals, we will have abandoned all attempt to determine
“substantive reasonableness.” Gall, 128 S.Ct. at 597. I would
reverse and remand.