[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 17, 2010
No. 09-11372 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00072-CR-4-SPM-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY MCGEE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 17, 2010)
Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.
PER CURIAM:
A Northern District of Florida jury found Bobby McGee guilty of two
counts of using interstate commerce to attempt to induce two minor children to
engage in sexual activity, in violation of 18 U.S.C. § 2422(b), and the district court
sentenced him to concurrent prison terms of 235 months. He now appeals his
convictions and sentences. We affirm.
I.
McGee challenges his convictions on the ground that the district court
abused its discretion in admitting his post-arrest statement to law enforcement
officers regarding his thoughts of molesting his own daughters because the
prejudicial value of the statement outweighed its probative value. See Fed. R.
Evid. 403. The statement was unnecessary to the prosecution’s case, he asserts,
because he conceded the issue of criminal intent at trial.
We review a district court’s evidentiary rulings, such as the rejection of a
Rule 403 challenge, for abuse of discretion. United States v. Jernigan, 341 F.3d
1273, 1284 (11th Cir. 2003). Rule 403 provides that relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.
R. Evid. 403; United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979). To be
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relevant, the evidence must be probative of the proposition it is offered to prove,
and the proposition to be proved must be one that is of consequence to the
determination of the action. United States v. Glasser, 773 F.2d 1553, 1559 n.4
(11th Cir. 1985). Thus, evidence introduced during a criminal trial should relate
only to the specific offense or offenses in the indictment. United States v. Audsley,
486 F.2d 289, 290 (5th Cir. 1973) (per curiam).
When reviewing a ruling under Rule 403, the balance is in favor of
admissibility, and we “look at the evidence in a light most favorable to its
admission, maximizing its probative value and minimizing its undue prejudicial
impact.” United States v. Brown, 441 F.3d 1330, 1362 (11th Cir. 2006). Relevant
evidence presented by the prosecution in a criminal trial is “inherently prejudicial;
it is only when unfair prejudice substantially outweighs probative value that [Rule
403] permits exclusion.” United States v. King, 713 F.2d 627, 631 (11th Cir.
1983). Since the prosecution is entitled to prove its case by the evidence of its
choice, the defendant must do more than merely show that alternative means of
proof were available that the prosecutor chose not to rely upon. Old Chief v.
United States, 519 U.S. 172, 182-83, 186-87, 117 S.Ct. 644, 650, 653, 136
L.Ed.2d. 574 (1997). A district court may abuse its discretion if it spurns a
defendant’s offer to admit an element of the offense in order to eliminate the
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prosecution’s need to prove the element. Id. at 519 U.S. at 174, 117 S.Ct. at 647.
The prosecution is required to prove each element of the charged offense
beyond a reasonable doubt to sustain a conviction. United States v. Rogers, 94
F.3d 1519, 1524 (11th Cir. 1996). To sustain a conviction for the crime of attempt,
the prosecution must prove that the defendant had specific intent to engage in the
criminal conduct for which he is charged and that he took a substantial step
towards the commission of the offense. United States v. Murrell, 368 F.3d 1283,
1286 (11th Cir. 2004). An attempt to violate 18 U.S.C. § 2422(b) requires proof
that the defendant, by means of interstate commerce, acted with specific intent to
persuade, induce, entice or coerce a minor to engage in unlawful sex. Id. A
defendant’s persuasion of a minor to engage in sexual conduct, without the
commission of any sex act, is sufficient to violate the statute. Id.
Our review of the trial transcript discloses that, contrary to his
representation, McGee did not adequately concede the issue of criminal intent at
trial. The admitted statement was probative of McGee’s intent and his substantial
step towards committing the offense, and there was no showing of undue prejudice.
Thus, the district court did not abuse its discretion in admitting the statement.
Accordingly, McGee’s convictions remain undisturbed.
II.
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McGee challenges his sentences on two grounds. The first is that the district
court misapplied the Guidelines; the second is that his sentences are unreasonable.
We consider these grounds in order.
A.
McGee argues that the district court erred in enhancing the base offense
level by two levels for undue influence because he rebutted the presumption of
undue influence by showing that he did not assert any influence on the fictitious
mother.1 The district court stated on the record that it would have imposed the same
sentences regardless of the application of the undue influence enhancement, any
error in the application of the enhancement is harmless.
B.
McGee argues that his sentences are procedurally and substantively
unreasonable, that his personal characteristics required the imposition of lesser
sentences. McGee also argues that the Guidelines sentence range for his offense is
arbitrary because Guidelines do not distinguish between cases involving fictional
minors, as in his case, and real minors, and they are not supported by empirical
1
He argues, alternatively, that this court’s precedent applying the undue influence
enhancement to a fictitious victim should be overruled in light of the recent amendment to U.S.S.G.
§ 2G1.3(b)(2)(B). Because, as we indicate below, the district court would have imposed the same
sentences regardless of the undue influence Guidelines provision, we do not consider this alternative
argument.
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data.
We review the reasonableness of sentences imposed under the Guidelines
for abuse of discretion. Gall v. United States, 552 U.S. 38, 56, 128 S.Ct. 586, 600,
169 L.Ed.2d 445 (2007). The burden of establishing that a sentence is
unreasonable lies with the party challenging the sentence. United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005).
When reviewing a sentence for reasonableness, we evaluate whether the
sentence fails to achieve the purposes of sentencing set out in 18 U.S.C. § 3553(a).
Id. The district court must impose a sentence sufficient, but not greater than
necessary, to (1) reflect the seriousness of the offense, (2) promote respect for the
law, (3) provide just punishment for the offense, (4) deter criminal conduct, (5)
protect the public from future crimes of the defendant, and (6) provide the
defendant with needed educational or vocational training or medical care. 18
U.S.C. § 3553(a)(2). The court must also consider the following factors in
determining a particular sentence: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the kinds of sentences
available; (3) the Guidelines sentence range; (4) the pertinent policy statements of
the Sentencing Commission; (5) the need to avoid unwarranted sentencing
disparity; and (6) the need to provide restitution to victims. 18 U.S.C. §
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3553(a)(1), (3)-(7).
Reasonableness review is deferential, and if a district court imposes a
sentence within the Guidelines sentence range, “we ordinarily will expect that
choice to be a reasonable one.” Id. The district court should “set forth enough to
satisfy the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” Rita v.
United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007).
Thus, if the record indicates in a “conceptually simple” case that the court has
listened to the arguments and considered the evidence, the court is not legally
required to expound upon the reasoning underlying his decision. 551 U.S. at 358-
59, 127 S.Ct. at 2469.
Given the record before us, we conclude that McGee’s prison sentences are
reasonable. The district court properly considered the arguments presented by the
parties, the Guidelines, and the statutory factors in imposing a sentence at the low
end of the Guidelines sentence range.
AFFIRMED.
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