In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2498
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B RIAN B ERG ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 856—Elaine E. Bucklo, Judge.
A RGUED D ECEMBER 8, 2009—D ECIDED A PRIL 5, 2011
Before E ASTERBROOK, Chief Judge, and R OVNER and
T INDER, Circuit Judges.
T INDER, Circuit Judge. Brian Berg was convicted of
attempting to persuade, induce, or entice a minor to
engage in sexual activity, 18 U.S.C. § 2422(b); knowingly
receiving computer images of child pornography, 18
U.S.C. § 2252A(a)(2); knowingly distributing computer
images of child pornography, § 2252A(a)(2); and know-
ingly possessing a computer disk containing images of
2 No. 09-2498
child pornography, § 2252A(a)(5). The district court
sentenced Berg to 124 months for the § 2422(b) offense
and 120 months for the other offenses, to run concur-
rently. Berg appeals, challenging the sufficiency of the
evidence to sustain his § 2422(b) conviction. He also
contends that prosecutorial misconduct during closing
argument entitles him to a new trial on all of the
charges against him. Finally, Berg argues that the district
court failed to address his claim that the mandatory
minimum sentence for § 2422(b) offenses results in unwar-
ranted sentencing disparities, rendering his sentence
unreasonable. We affirm.
I. Background
On May 30, 2007, Berg contacted an individual identi-
fying herself as “Carrie,” in an Internet chat room.
Berg asked Carrie her age and location. She said she
was sixteen and just moved to Palos Park, Illinois. Berg,
who was twenty-eight years old, told Carrie that he was
twenty-five years old and from Palos Heights, Illinois.
Carrie told Berg to send a picture, and Berg sent her a
photograph of himself. Carrie also told Berg that she
smoked cigarettes.
“Carrie” was really Detective Dan Albrecht of the
Western Springs Police Department, who was conducting
an undercover operation targeting persons who used the
Internet to solicit minors for sex. Detective Albrecht
had created an online persona for Carrie, including an
America Online (AOL) profile and MySpace page. The
AOL profile identified Carrie as a sixteen-year-old girl
No. 09-2498 3
and included a photograph of what appeared to be a
young teenager at a park. (The photo was really of a
police officer.) Carrie’s Myspace page also stated that
Carrie was sixteen years old and included four photo-
graphs of the same officer posing as a young teenager.
Detective Albrecht used the AOL user nam e
“carrie4u1991.”
Berg contacted Carrie again the next day. He asked
her for a picture; she sent him one of the photos of the
police officer posing as a young teen. Berg responded,
“Nice.” Berg asked Carrie why she liked “older guys” and
told her that younger girls kissed better and that he
“like[d] to touch when I kiss.” Berg asked Carrie her bra
size and whether she “use[d] lots of tongue” when she
kissed. He told her that he thought girls looked sexy
when they smoked and that he loved to watch sexy
girls blow smoke out of their mouths. Berg offered to
bring Carrie a pack of cigarettes if she would smoke for
him and suggested that they meet. When Carrie asked
Berg what they would do if they met, he suggested that
they could “make out.” He reiterated that he thought it
looks sexy when a girl smokes. He then asked Carrie how
far she had gone with a guy, and Carrie answered that
she had had sex. Berg again suggested that they meet.
When Carrie asked him what was in it for her, he an-
swered, “free cigarettes,” and asked what else she
wanted. Berg suggested a third time that they meet.
On September 3, 2007, Berg contacted Carrie in the chat
room and asked her if she liked older guys. Carrie told
Berg that she was sixteen years old. Berg sent Carrie a
4 No. 09-2498
picture of his erect penis covered by boxer shorts and
inquired whether she liked what she saw. He also
asked her if she had any “sexy pics.” She said no.
Berg then asked Carrie “what kind of panties” she was
wearing. She answered, “wouldn’t you like to know,” to
which Berg responded, “we could meet up and you
could show me LOL.” Three times Berg suggested that
Carrie meet him. He also asked her what she would
want to do if they met. Berg then turned the conversa-
tion to oral sex. He told Carrie that he loved giving
oral sex to a girl. He asked her what she liked to do
sexually and whether she liked to receive oral sex. Carrie
answered, “yes,” and Berg said that he’d make her “go
crazy” and expected “a good blow job” in return. When
Carrie expressed concern over her ability to give him
what he wanted, Berg assured her that she was “very
sweet and fun to talk to” and that she “would be fine
xoxoxo.” He also described his prior sexual exploits
with two other girls he had met online.
In the next few days, Berg contacted Carrie several
more times in the chat room and sent her text messages.
On September 4, he asked her what kind of panties she
was wearing and told her that they should meet. She
advised him she had plans with her girlfriends. Berg
told Carrie to tell her friends she was busy. Carrie re-
sponded, “you would really have to entice me to
make me blow them off,” and Berg replied, “pretty
much remember all the stuff we talked about yesterday.”
He told Carrie that if she gave him a chance to perform
oral sex on her, she would want to come over every
day. He assured her that it would be fun. Berg asked
No. 09-2498 5
Carrie about the color bra and kind of panties she was
wearing. On September 5, Berg made arrangements to
meet Carrie behind a liquor store at 55th Street and
Willow Springs Road later that day. On his way to the
meeting place, Berg had a telephone conversation with
someone representing herself as Carrie (she was a
female police officer). He said he thought it sounded like
a man impersonating a girl. Berg claimed he thought
he was being set up to get robbed. As a result, he didn’t
show up for the meeting.
Berg contacted Carrie several other times in the fall of
2007. For example, on October 13, he asked Carrie
what kind of panties she was wearing. And on Novem-
ber 3, he contacted her and asked her if she had any
new pictures, whether she had been with any guys
lately, and what she was wearing. Berg told Carrie
he would “like to meet up” and reminded her that he
had said he “would love to lick your pussy last time.” He
suggested that “maybe [they] could meet up.” Then he
asked her if she gave “good blow jobs,” what she liked
to do to guys, and what she liked to have done to her.
When Carrie responded that she loved back rubs, Berg
assured her that he gave good back rubs.
On November 11, Berg again contacted Carrie. He asked
her what she was wearing and what color bra she was
wearing. He told her that he wanted to see it and asked
her if she could go out. Berg sent Carrie another photo-
graph of his erect penis covered by boxer shorts and
again asked her if she could go out. Carrie agreed to
meet him near the liquor store at 55th Street and
Willow Springs Road. She suggested that they meet in
6 No. 09-2498
back; Berg countered that they meet out front. Carrie
informed Berg that she had to be home by 9:00 p.m.
that night.
Berg drove to meet Carrie at the designated meeting
place, which was approximately eight to ten miles from
his residence, sending her text messages along the way.
He indicated that he’d be there at 8:13 p.m. Berg drove
toward 55th Street and Willow Springs Road and past
the liquor store a couple of times, under the observation
of Detective Albrecht and other law enforcement officers.
Then Berg pulled into the parking lot in front of the
liquor store and was arrested immediately.
The officers took Berg to the Western Springs Police
Department, where Detective Albrecht read Berg his
Miranda rights. Berg signed a written Miranda waiver
and agreed to speak with the detective. During his in-
terview, Detective Albrecht asked Berg how old he
thought Carrie was, and Berg said fifteen or sixteen
years old. The detective asked Berg what he planned to
do with Carrie had she shown up at the meeting place
and specifically asked whether he would have had sex
with her. Berg stated that he would not have had sex
but would have had oral sex with her and a mutual
showing of genitalia, as well as drive around. Detective
Albrecht questioned Berg about his other Internet activi-
ties. Berg said that he had in-person meetings with ten
to fifteen women and girls whom he first met on the
Internet; five or six of them were under the age of seven-
teen. Berg also said that five months before his arrest
he had met a minor under seventeen whom he had met
No. 09-2498 7
on Myspace, a social networking website. He said they
drove around, and she gave him a “hand job” in his car,
meaning that she rubbed his penis with her hand.
After Detective Albrecht interviewed Berg, Araceli
Reyes Delacruz, an assistant state’s attorney (ASA), arrived
at the police station to interview Berg and take a state-
ment from him. She first met with Detective Albrecht
and reviewed the transcripts of the chats that he, posing
as Carrie, had with Berg. After that, ASA Delacruz gave
Berg his Miranda warnings, Berg waived his rights, and
Delacruz interviewed him. At the end of the interview,
Berg agreed to have ASA Delacruz write out a state-
ment for him. The statement provides in part:
Brian states that he has been chatting with
“carrie4u1991” since May of 2007. Brian states that
“carrie4u1991” stated that she was 16 years old and
he told her that he was 25 years old. Since May
2007 until today’s date Brian states that he has
chatted with her several times. Brian states that
People’s Exhibit No. 1 is a copy of a chat he
had with “carrie4u1991” on 9/4/07. Brian states
that this is one of many chats he had with
“carrie4u1991.” Brian states that during this partic-
ular chat, he told “carrie4u1991” that he wanted
to go down on her. Brian states that he meant
he wanted to perform oral sex on her. . . .
Brian states that People’s Exhibit No. 2 is a copy
of a chat he had with “carrie4u1991” on 11/3/07.
Brian states that he again indicated that he wanted
to perform oral sex on “carrie4u1991” . . . .
8 No. 09-2498
Brian states that on today’s date, 11/11/07, he
chatted with “carrie4u1991,” emailed her, and
text messaged her. Brian states that he and
“carrie4u1991” agreed to meet at 55th and Willow
Springs Road at Countryside, Illinois, at about 8:15.
Brian states that he arrived at the agreed loca-
tion to meet “carrie4u1991” and had she actually
shown up he would have engaged in oral sex
with her if she wanted.
After Berg’s arrest, Detective Albrecht searched one
of Berg’s cell phones and found approximately thirty-
three images of a younger female. Some of the images
showed her clothed, some showed her naked and
exposed her breasts and genitalia, and others showed
her smoking. Berg told Detective Albrecht that the
pictures were of his girlfriend, Kati, who was seventeen
years old and lived in Oregon. Detective Albrecht
found the name Kati in Berg’s phone’s contact list and
placed a call to the number listed. A female answered,
identifying herself as Kati, and said that Berg was her
boyfriend.
An eight-count indictment charged Berg with one
count of attempting to persuade, induce, and entice a
minor under age eighteen to engage in sexual activity
in violation of 18 U.S.C. § 2422(b) and several counts of
knowingly receiving and distributing child pornography
and possessing material containing child pornography
in violation of 18 U.S.C. § 2252A(a)(2) and (5). Berg’s
case went to trial.
At Berg’s trial, Kati testified that she met Berg in late
spring or early summer 2003 when she was thirteen. (She
No. 09-2498 9
was born in early 1990.) Berg was twenty-three at that
time. Kati’s friend, Ashley, had told Kati about Berg and
said that he gave her free cigarettes. Kati contacted
Berg and asked him to get her cigarettes too. He agreed.
When he gave the cigarettes to Kati, he asked her for
the underwear she was wearing. Kati led Berg to
believe that she was fifteen years old at that time. They
saw each other every four or five days. Kati first had
sexual contact with Berg anywhere from six months to a
year after they first met. When she was fourteen years
old, Kati and Berg engaged in oral sex, and they did so
on more than one occasion. When she was fifteen, they
had sexual intercourse in his car after Berg picked her
up from an Alcoholics Anonymous meeting. And when
she was sixteen, Berg first got her drunk and then they
had sexual intercourse in his condo. Berg gave Kati ap-
proximately two to three hundred dollars that day.
Kati estimated that he gave her a total of approximately
$7,000 over the course of their relationship.
Around the time Kati was turning sixteen in early
2006, Berg sent her a text message telling her some of the
sexual things she could do for him when she turned
eighteen. Kati understood that Berg thought she was
about to turn eighteen—not sixteen. She texted him that
she was sorry she led him to believe that she was older
than she really was and told him that she was actually
turning sixteen years old. Kati testified that Berg
was upset at first but then said that he was fine and she
shouldn’t worry about it. Berg continued to have sexual
contact with Kati after that.
10 No. 09-2498
Kati moved to Oregon in August 2006. Berg paid for
her to return to Illinois. Kati made five trips back to
Illinois. On one such trip, Berg gave her alcohol, got her
drunk, and they had sexual intercourse. When Kati was
sixteen, Berg repeatedly asked her to send him pictures
of herself, telling her what kind he wanted, including
sexually explicit pictures. Kati sent Berg numerous
pictures taken with her cell phone; some were sexually
explicit. She also emailed him sexually explicit photos
on January 10 and June 24, 2007. Kati was sixteen years
old in January 2007 and seventeen years old in June
that year. Berg saved the emails and the accompanying
child pornography to his computer. Later that year, he
distributed several of the sexually explicit pictures of
Kati over the Internet.
Berg testified that based on Carrie’s picture, she didn’t
look sixteen years old, and he thought she was eighteen
or nineteen. He claimed that he got into conversa-
tions about oral sex with Carrie because she wanted
him to. Berg testified that his intention in meeting
Carrie on November 11 was to see who he had been com-
municating with. He said that he intended to spend ten
minutes with her, “just to see who she [was]” and drive
around. Berg denied that he would have engaged in
oral sex with Carrie if she had shown up. Although he
admitted to meeting in person “probably five” minors
whom he first met on the Internet, he claimed that
nothing sexual ever happened at the first and second
meetings he had with the girls.
Berg testified about his interview at the police station
with Detective Albrecht. He said that the detective
No. 09-2498 11
told him that if he cooperated, it would be a lot easier
on him, and if he didn’t cooperate, the detective could
“screw you.” Berg said that he believed it was in his
best interest to cooperate. He also said that Detective
Albrecht told him that the interview was being recorded
and that a camera was in the interview room. Berg stated
that Detective Albrecht asked him how old he thought
Carrie was, and Berg answered that he was not sure.
Then, according to Berg, the detective offered, “She said
she was 16,” and so Berg “just said, ‘Okay, 16.’ ” Berg said
that Detective Albrecht questioned him about what
he would have done had he met Carrie, and he re-
sponded that “nothing would have happened; we
would have just dr[i]ve[n] around.” He claimed that
Detective Albrecht then asked him, “Would you have
had oral sex with her?” and he said, “No.” Berg also
claimed that the detective said, “Come on. You mean
you wouldn’t have oral sex if she wanted?” He again
said, “No.” According to Berg, the detective asked
the same question again, saying, “Come on. You really
wouldn’t have oral sex with her if she offered?” He re-
peated, “No.” Berg testified that the detective asked
the same question a fourth time and he “finally agreed
with him, because he kept saying, ‘If you cooperate
with me, this will be a lot easier.’ ” Berg also explained
that Detective Albrecht had told him the interview
was being recorded, so Berg thought the recording
would show him denying that he would have had oral
sex with Carrie three times and Detective Albrecht pres-
suring him into saying what Albrecht wanted him to say.
12 No. 09-2498
Berg stated that the ASA took a written statement
from him, basically asking the same questions that the
detective had put to him. Berg claimed that he denied
he would have engaged in oral sex with Carrie, but Detec-
tive Albrecht was present and “wouldn’t take [no] for
an answer,” so he “said yes, knowing I was being video-
taped and they said this was being videotaped.” The ASA
asked Berg if he had been threatened, and according
to Berg, he told her “no” because he “was going along
with Albrecht” who was “telling [him] to cooperate.”
Berg agreed that he was allowed to make changes to
his written statement before signing it and did in fact
make a few changes. He said that he did not change
his answer about having oral sex with Carrie, explaining
that he “tried to say no already, and they wouldn’t let
me. [Detective Albrecht] wouldn’t take no for an
answer, so why try to change it. . . . [S]o I just agreed with
him.”
Detective Albrecht gave a different account of his
interview of Berg. He described Berg as a little nervous,
but calm and very cooperative. Detective Albrecht said
he asked Berg how old he thought Carrie was, and
Berg answered, “fifteen or sixteen.” Detective Albrecht
testified that he asked Berg what he planned to do
with Carrie had she shown up and specifically asked if
he would have had “sex” with her. Detective Albrecht
testified that Berg said he would not have had sex (pre-
sumably meaning sexual intercourse) but would have
had oral sex with her and a mutual showing of genitalia,
and would have driven around.
No. 09-2498 13
In closing argument, Berg’s counsel argued that the
government did not prove beyond a reasonable doubt
that Berg intended to engage in sexual activity with a
minor when he traveled to meet Carrie on November 11.
In rebuttal, the prosecutor responded that Berg wanted
to have oral sex with Carrie. The prosecutor argued
that Berg’s intent was demonstrated by the chats them-
selves as well as by his admission at the police station
and written statement. About that statement, the prosecu-
tor argued:
And what was it about? Do you really think for
a moment— and I don’t know if they really do or
not, but whether or not when assistant state’s
attorney Delacruz, a respected assistant state’s
attorney, put up her hand and swore to tell the
truth, that somehow she put into a written state-
ment that the defendant signed that wasn’t true?
Why would she do that? Why in God’s name
would she willingly put her name to something
that she wasn’t, knew not to be true or wasn’t
accurate? It wouldn’t happen. She put her job
at risk, she put her livelihood at risk.
Berg’s counsel objected. The district court did not rule
on the objection or instruct the jury to disregard the
statements, but simply told the prosecutor to move on.
The jury found Berg guilty on all counts. Berg moved
for judgment of acquittal or in the alternative for a new
trial. The district court denied his motion and sentenced
him to 124 months’ imprisonment—a mandatory ten-
year minimum plus four months (which the court added
based on its finding that Berg had not been completely
14 No. 09-2498
truthful)—on the § 2422(b) offense and a 120-month
concurrent sentence on the other seven counts.
II. Discussion
A. Sufficiency of the Evidence of a § 2422(b) Attempt
We begin with Berg’s challenge to the sufficiency of
the evidence to sustain his conviction under the “at-
tempt” branch of § 2422(b), which provides in pertinent
part:
Whoever, using . . . any facility or means of
interstate or foreign commerce . . . knowingly
persuades, induces, entices, or coerces any indi-
vidual 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, shall be [punished accordingly].
We view the evidence in the light most favorable to the
government and consider whether any rational trier of
fact could have found the defendant guilty beyond a
reasonable doubt. United States v. Warren, 593 F.3d 540,
546 (7th Cir. 2010). Berg faces a nearly insurmountable
burden in challenging the sufficiency of the evidence.
United States v. Hensley, 574 F.3d 384, 390 (7th Cir. 2009),
cert. denied, 130 S. Ct. 1284 (2010).
To sustain an attempt conviction, the government
“was required to prove that [Berg] acted with the
specific intent to commit the underlying crime and that
he took a substantial step towards completion of the
No. 09-2498 15
offense.” United States v. Coté, 504 F.3d 682, 687 (7th
Cir. 2007) (citations omitted); see also United States v.
Gladish, 536 F.3d 646, 648 (7th Cir. 2008) (“To be guilty
of an attempt you must intend the completed crime
and take a ‘substantial step’ toward its completion.”
(citing Braxton v. United States, 500 U.S. 344, 349 (1991))).
Berg’s challenge to the sufficiency of the evidence against
him is a narrow one. He does not dispute that a face-to-
face meeting in the course of a grooming process can
be sufficient proof of a “substantial step” toward the
completion of a § 2422(b) attempt. He argues instead
that his conviction cannot be sustained because the gov-
ernment failed to prove beyond a reasonable doubt that
he had the specific intent to engage in sexual activity
with Carrie on November 11, the evening of their
planned meeting.
Berg’s claim fails because there was plenty of evidence
upon which the jury could have determined that he
went to that meeting with sexual activity in mind. But
as we will also discuss, Berg’s premise that the planned
meeting must include a sexual event is wrong.
The Internet discussions that preceded the planned
meeting can be read as a whole to be dominated by
sexual content. The chat transcripts are clear and
provide substantial evidence of Berg’s attempt to
persuade, induce, or entice Carrie to participate in
a variety of sexual acts and of his intent to do so. On
numerous occasions, he asked her about her panties,
her bras, and what she was wearing. He asked her if she
could show him her underclothes. He repeatedly offered
16 No. 09-2498
her free cigarettes if she’d meet him—knowing
that she smoked—and told her that girls looked sexy
when they smoked. He asked her for “sexy pictures”
and sent her two pictures of his “boxer shorts,” even
inquiring whether she liked what she saw. Their respec-
tive ages were clearly communicated during the discus-
sions. Moreover, Berg engaged in even more explicitly
sexual conversations with Carrie. Berg informed Carrie
that he loved giving oral sex to a girl and asked her
whether she liked to receive oral sex. When Carrie an-
swered, “yes,” Berg said that he’d make her “go crazy.” He
assured her that if he had the chance to perform oral sex
on her, she would want him to do it every day. Berg
let Carrie know that he expected “a good blow job”
in return, and when Carrie expressed uncertainty
about that, he reassured her that she “would be fine.”
On three separate occasions, Berg discussed his desire to
have oral sex with Carrie, even encouraging her to “give
[him] the chance to do it” and promising that if she did,
she would want to “come over everyday.” He asked
Carrie to meet him numerous (more than sixteen) times
and bragged about his sexual exploits with other girls
he had met on the Internet. It is hard to read those chats
as having any other purpose than intending to set up
sexual encounters.
Berg suggests that his stated desire to have oral sex
with Carrie in their Internet communications is
insufficient evidence of his intent. He asserts that
explicit sexual communications of this nature are not
illegal, citing Gladish and Hensley. Neither case holds
that explicit sexual communications over the Internet
No. 09-2498 17
are insufficient evidence of intent. Gladish focused on
whether the government had proven that the defendant
took a “substantial step” toward the commission of
the completed offense. The evidence failed to establish
that the defendant was more than “hot air”: his chats
with “Abagail” were sexually explicit, but he never
indicated that he would travel to meet her to perform
sex acts on her; nor did he invite her to meet him. And
there was no suggestion that he ever had sex with an
underage girl. Gladish, 536 F.3d at 648-50. Here, in
contrast, Berg not only engaged in sexually explicit
chats with Carrie, but also made arrangements to
and traveled to meet her, actually on two occasions,
September 5 and November 11. In addition, the jury
heard from Kati that Berg had engaged in sexual activity
with her when she was under seventeen. In Hensley, we
considered evidence of the defendant’s numerous online
and phone conversations with an online person named
“Jen” about meeting for sex as evidence of his intent.
574 F.3d at 390. Hensley is of no help to Berg on the issue
of his intent.
While Berg argues that his past pattern of conduct
shows that nothing sexual would have happened the
first night he met Carrie, the jury could have found other-
wise. It is true that Kati testified that she had her first
sexual contact with Berg six months to a year after they
met. However, other than Berg’s self-serving testimony
that nothing ever happened at any of his other first or
second in-person meetings, that is the only evidence
of Berg’s “pattern of conduct.” A jury reasonably could
have rejected Berg’s testimony about this supposed
18 No. 09-2498
pattern of conduct and found that Kati’s experience
was insufficient to establish a pattern of conduct
negating any intent. Furthermore, what actually hap-
pened or didn’t happen between Berg and Kati, and
Berg and the other five minors, may have little bearing
on Berg’s intent at those prior first meetings. It is one
thing to intend to do something, here specifically, to
intend to persuade, induce, or entice a minor to engage
in sexual activity. It is another thing to actually succeed.
That it may have taken Berg several in-person meetings
to persuade the other girls to engage in sexual activity
does not necessarily mean that he had no intent to engage
in such activity at an initial meeting and would have
done so had they agreed. Moreover, rather than viewing
the evidence of Berg’s activities with Kati as cutting
against a finding of his intent, the jury could have
found Kati’s testimony to be strong evidence of Berg’s
intent to engage in sexual activity with Carrie.
In addition, the jury had the evidence that Berg
admitted first to Detective Albrecht and then to ASA
Delacruz that he would have had oral sex with Carrie
had she shown up at their meeting place. That testimony
was accompanied by Berg’s signed, written statement
which was admitted into evidence. The statement
provides in part: “Brian states that he arrived at the
agreed location to meet ‘carrie4u1991’ and had she
actually shown up, he would have engaged in oral sex
with her if she wanted.” The statement concludes: “Brian
states that everything contained in this statement is
true and correct,” which is followed by Berg’s signature
and those of ASA Delacruz, Detective Phillip LoChirco,
No. 09-2498 19
and Detective Albrecht, who were present when Berg
gave his written statement.
Berg makes much of his testimony that when inter-
viewed by Detective Albrecht, he initially denied that
anything sexual would have happened and that the
detective had to ask him the same question four times
before he agreed that he would have had oral sex with
Carrie. Berg claimed that he thought the interview was
being recorded and that the recording would show him
three times denying that he would have had oral sex
with Carrie and Detective Albrecht pressuring him into
saying what he wanted to hear. The trial court charged
the jury with deciding whether Berg made the state-
ments to law enforcement and the ASA, and if so, to
decide what weight to give the statements. The court
instructed the jury that “[i]n making this decision, you
should consider all matters in evidence, including . . . the
circumstances under which the statements were made.”
Berg points to the fact that during the sentencing
hearing, the district court found it plausible that Berg
did not immediately admit to wanting to have oral sex
with Carrie. That may be a reasonable view of the evi-
dence. But it is not the only one. The jury did not have
to credit any of Berg’s testimony about the interview.
More to the point, the jury did not have to believe his
testimony that he made this admission just because
Detective Albrecht wouldn’t take no for an answer and
not because it was, in fact, the truth.
Berg counters the evidence of his intent with several
other arguments. He points out that none of the chats,
20 No. 09-2498
and especially the communications arranging the rendez-
vous, specifically include an agreement to have sexual
relations at a time certain. He points out that in one of
the last chats, Carrie asked him what they would do
when they met, and he responded that he didn’t know
and that they would drive around, without specific
mention of sexual activity. But the chats did not have
to specify an agreement to have sexual relations; the
jury could reasonably find from the overall tenor of the
many chats and Berg’s persistence in meeting with
Carrie that Berg intended for some sexual activity to
occur. Indeed, in requesting that they meet and dis-
cussing what they would do when they met, Berg sug-
gested that they “just hang out and talk, . . . go from
there” and “see what happens.” The jury could rea-
sonably find from the evidence that although Berg told
Carrie in a later chat that they would just drive around,
his intent was that they have oral sex. See Hensley, 574
F.3d at 391 (concluding that defendant’s conversations
revealed that he had “sex on his mind and was interested
in much more than a platonic relationship”). The jury
could reject Berg’s testimony that his intent in meeting
Carrie that night was merely to see who she was and
spend several minutes with her, just driving around. The
jury did not have to believe Berg when he said he had no
intent to engage in oral sex with Carrie when he met her.
Berg also points out that the agreement was to meet
for only about twenty minutes. But the type of activities
that he discussed with Carrie in the chats would not
necessarily take a long period of time, at least not to
constitute a violation of the Illinois law. See 720 ILCS
No. 09-2498 21
5/12-15(c) (criminal sexual abuse is committed if an
accused “commits an act of sexual penetration or sexual
conduct with a victim who was at least 13 years of age
but under 17 years of age and the accused was less than
5 years older than the victim”); People v. Poe, 896
N.E.2d 453, 458 (Ill. Ct. App. 2008) (defining “sexual
conduct” to include “any intentional annoying touching
or fondling by the accused either directly or through
the clothing of any part of the body of the child under
13 years of age for the purpose of sexual gratification
or arousal”). Berg also points out that he was not
carrying any condoms or sexual paraphernalia when
he was intercepted at the meeting site. But again, sexual
activity of the type he described would not require
such things. And he ignores the fact that he had two
cases of beer in his car as he drove to the anticipated
November 11 meeting as well as how helpful alcohol
had been in his prior grooming of Kati as a victim.
Berg also maintains that his prior encounters with
underage victims did not result in sexual activity during
the first and second meetings, which he asserts shows
that several months would pass after his initial meeting
with Carrie before any sexual activity would take place.
It is true that the district judge mentioned in post-
verdict hearings that her assessment of the evidence
allowed her to accept Berg’s assertion that he did not
intend to engage in sexual activity with Carrie at the
November meeting. (Although the judge clearly believed
that Berg intended to engage in sexual activity with
Carrie while she was underage.) But the district judge’s
view of the evidence does not control what a reasonable
22 No. 09-2498
jury could find. There was plenty of evidence intro-
duced at trial for the jury to conclude that Berg went to the
November 11 meeting with a sexual purpose in mind.
The jury did not have to find that he intended to act in
a manner consistent with his past. The jury could have
found that Berg’s claimed pattern of conduct was “beside
the point” because he confessed to the detective and
ASA that he intended to have oral sex with Carrie if she
showed up and wanted it. The evidence before the jury
allowed it to conclude that Berg intended to act on what-
ever opportunities were available to him during the
planned meeting.
In a related argument, Berg asserts that intent to
engage in sexual activity “on some date in the future”
cannot sustain his conviction under § 2422(b). This is
because Carrie indicated she was born in 1991, seventeen
is the age of consent in Illinois, and the evidence
regarding Kati shows that one year elapsed before any
sexual activity took place. Thus, Berg submits, Carrie
arguably could reach the age of consent before any
sexual activity occurred. She did not disclose her date
of birth during the chats, instead only indicating that
she was sixteen years of age. So, the argument goes, she
could have reached the age of consent by January 1, 2008.
The district court concluded that Berg could have met
Carrie on November 11 without an intent to engage
in sexual activity that night, yet still be convicted of a
§ 2422(b) attempt because he intended to engage in
sexual activity with her during her minority. As
addressed above, there was abundant evidence to
prove beyond a reasonable doubt that Berg intended to
No. 09-2498 23
engage in sexual activity with Carrie, someone he
believed was under seventeen years of age. And Berg
hasn’t argued that he lacked such intent. Instead, he
focuses on his claimed intent specifically on November 11.
In his reply brief, Berg goes so far as to assert that
the indictment charged that the § 2422(b) attempt
offense “was to take place on November 11, 2007.” That is
an incomplete reading of the indictment. The indictment
charged that Berg “[f]rom on or about May 30, 2007
and continuing to on or about November 11, 2007, . . .
using a facility and means of interstate and foreign com-
merce, did knowingly attempt to persuade, induce, and
entice ‘Carrie4u1991,’ whom [he] believed to be a
female minor . . . to engage in sexual activity for which
[he] could be charged with a criminal offense.” Thus the
indictment did not limit the offense to having occurred
on November 11. Nor did it charge that the intended
sexual activity was to occur on that date.
As the district court instructed the jury, the govern-
ment had to prove that Berg “knowingly took a
substantial step toward the commission of the offense
with the intent to commit that offense.” See, e.g., Gladish,
536 F.3d at 648 (emphasis added). Berg does not
challenge the sufficiency of the evidence to establish
that he knowingly took a substantial step toward the
completion of a § 2422(b) attempt. While mere sexually
explicit talk may not suffice to establish a “substantial
step,” “making arrangements for meeting the girl, as by
agreeing on a time and place for the meeting” surely
does. Gladish, 536 F.3d at 649. Berg first errs in focusing
solely on the events of November 11. He ignores the
24 No. 09-2498
evidence, some of which came from his own testimony,
that he made arrangements to meet Carrie behind a
liquor store at 55th Street and Willow Springs Road on
September 5. They didn’t end up actually meeting that
evening because, Berg testified, on his way to the meeting
place, he had a phone conversation with a person he be-
lieved was Carrie, and the voice on the phone sounded
like a man impersonating a girl; so he hung up, turned
around, and went home. He claimed he thought
he was being set up to be robbed. The jury could have
found that this arrangement to meet on September 5 was
a substantial step. Based on the chat evidence, the jury
could have found that Berg made this arrangement
with the intent to engage in sexual activity with Carrie.
The evidence of the events of November 11 could also
support a finding that Berg took a substantial step with
the requisite intent. Berg again made arrangements to
meet Carrie and even traveled to the meeting place. As
stated, the jury was not obliged to conclude that his
claimed “past pattern of conduct” limited how far he
intended to take things on November 11. More to the
point, the jury did not have to credit his denial of an
intent to engage in sexual activity with Carrie on Novem-
ber 11. The chat evidence and Berg’s confession weighed
against finding his denial credible. Nothing he communi-
cated in those chats suggested that he intended to defer
his sexual ambitions with Carrie until a certain date or
until she reached a certain age. In fact, those chats could
be understood as reflecting Berg’s intent to take ad-
vantage of whatever sexual opportunity Carrie might
present as soon as they might meet. Thus, a reasonable
No. 09-2498 25
jury could find from the evidence that Berg took a substan-
tial step or steps toward the completion of the § 2422(b)
offense. A reasonable jury also could find from the evi-
dence that Berg took that step or steps with the intent
to engage in sexual activity with Carrie.
Yet another way to look at this is that Berg misunder-
stands the “underlying” and “completed” crime to which
Coté and Gladish refer to be the criminal sexual activity
itself. However, “the underlying crime” means “one of
the proscribed acts with respect to a minor,” Coté, 504 F.3d
at 687, that is, to persuade, induce, entice, or coerce, id.;
accord United States v. Murrell, 368 F.3d 1283, 1286 (11th
Cir. 2004). Because Berg was charged with a § 2422(b)
attempt, the government’s burden was to prove beyond
a reasonable doubt that he intended to persuade, induce,
or entice someone whom he believed was a minor to
engage in sexual activity—not that he intended to
engage in sexual activity. Coté, 504 F.3d at 687 (stating
that “the Government’s burden in [a § 2422(b) attempt]
case is to demonstrate, beyond a reasonable doubt, that
the defendant intended . . . to induce, entice or coerce
a minor”).1
Language in Hensley and Gladish may seem to suggest
that a defendant must intend to engage in sexual activity
with the minor. The defendant in Hensley was convicted
of attempt under § 2422(b). On appeal, he argued that
the evidence was insufficient to show that he took a
1
Section § 2422(b) also includes the verb “coerce,” but the
indictment did not charge Berg with attempting to coerce.
26 No. 09-2498
“substantial step” toward the completion of the § 2422(b)
offense. We concluded that evidence that the
defendant “groomed” the minor “Jen” for sex, arranged
a meeting place and time to meet her, and actually
traveled to the meeting place before being deterred by
law enforcement’s presence was more than sufficient for
the jury to find a “substantial step.” Hensley, 574 F.3d
at 391. The defendant argued that his travel to the
meeting place should be viewed in the context of his
last phone call to “Jen” before he went to meet her in
which “he told her he was not sure sex was a good
idea and asked if it was alright if they just hung out
together.” Id. We concluded that a jury could have
found that Hensley wanted sex—not just to hang out.
Id. But the case did not call upon us to decide what
specific intent was required for a § 2422(b) attempt con-
viction.
In Gladish, after holding that the government had not
proven that the defendant took a substantial step toward
the completion of the § 2422(b) attempt crime, we ad-
dressed the exclusion of an expert witness’s testimony,
saying that “[t]he psychologist could not have been
permitted to testify that the defendant did not intend
to have sex with ‘Abagail,’ but he could have testified
that it was unlikely, given the defendant’s psychology,
that he would act on his intent.” Gladish, 536 F.3d at 650.
The reason such testimony was relevant: the likelihood
that a defendant would act on an expressed intent to
have sex with someone may be probative of whether or
not he intended to persuade, induce, or entice that
person to engage in sex with him. We did not decide
No. 09-2498 27
in Gladish what intent is necessary—whether it is the
intent to persuade, induce or entice; or the intent to
engage in sexual activity—to convict a defendant of a
§ 2422(b) attempt crime.
Moreover, we noted in United States v. Cochran, 534
F.3d 631 (7th Cir. 2008), that “other courts have empha-
sized that § 2422(b) criminalizes ‘the persuasion, induce-
ment, enticement, or coercion of the minor rather than
the sex act itself.’ ” Id. at 634 (quoting Murrell, 368 F.3d
at 1286 and citing United States v. Bailey, 228 F.3d 637,
639 (6th Cir. 2000)); see also United Sates v. Lee, 603 F.3d
904, 914 (11th Cir. 2010) (“Section 2422(b) expressly
proscribes the persuasion, inducement, enticement, or
coercion of a minor to engage in illicit sexual activity,
and not the sexual activity itself.” (quotation omitted));
United States v. Goetzke, 494 F.3d 1231, 1236 (9th Cir. 2007)
(explaining that a § 2422(b) attempt requires proof of an
attempt to persuade, induce, entice or coerce rather
than proof of an attempt to engage in sexual activity).
Ergo, “if a person persuaded a minor to engage in sexual
conduct (e.g., with himself or a third party), without
then actually committing any sex act himself, he would
nevertheless violate § 2422(b).” Murrell, 368 F.3d at 1286
(emphasis in original). The key here is that Berg was
charged with knowingly attempting to persuade, induce,
and entice Carrie, whom he believed to be under
age seventeen, to engage in sexual activity—not with at-
tempting to engage in sexual activity with her. See
Goetzke, 494 F.3d at 1236; see also Lee, 603 F.3d at 916
(stating that § “2422(b) does not require proof of an
attempt at child molestation”).
28 No. 09-2498
Bailey addressed the argument pressed here: whether
a § 2422(b) attempt conviction requires the specific
intent to commit an illegal sexual act rather than the
mere intent to persuade or solicit the minor to commit
a sexual act. 228 F.3d at 638. The court found the argu-
ment meritless:
While it may be rare for there to be a separation
between the intent to persuade and the follow-up
intent to perform the act after persuasion, they
are two clearly separate and different intents
and the Congress has made a clear choice to
criminalize persuasion and the attempt to per-
suade, not the performance of the sexual acts
themselves. Hence, a conviction under the statute
only requires a finding that the defendant had
an intent to persuade or to attempt to persuade.
Id. at 639. The other circuits to have addressed the issue
of what intent is required under § 2422(b) are in ac-
cord. Lee, 603 F.3d at 914 (a conviction for attempted
enticement under § 2422(b) requires proof “that the
defendant intended to cause assent on the part of the
minor, not that he acted with the specific intent to
engage in sexual activity” (quotation omitted)); United
States v. Dwinells, 508 F.3d 63, 71 (1st Cir. 2007) (holding
§ 2422(b) does not require an intent that the criminal
sexual activity be consummated); United States v. Brand,
467 F.3d 179, 202 (2d Cir. 2006) (“A conviction under
§ 2422(b) requires a finding only of an attempt to entice
or an intent to entice, and not an intent to perform the
sexual act following the persuasion.”); United States v.
No. 09-2498 29
Thomas, 410 F.3d 1235, 1244 (10th Cir. 2005) (“Section
2422(b) requires only that the defendant intend to entice
a minor, not that the defendant intend to commit the
underlying sexual act.”); United States v. Patten, 397 F.3d
1100, 1103 (8th Cir. 2005) (“[T]he intent that violates
§ 2422(b) is the intent to persuade a minor to engage
in illegal sexual activity”); see also Andriy Pazuniak, A
Better Way to Stop Online Predators: Encouraging a More
Appealing Approach to § 2422(b), 40 Seton Hall L. Rev.
691, 704 (2010) (Section “2422(b) does not require a de-
fendant to demonstrate an intent to actually engage in
illegal sexual activity with a minor. Rather, a defendant
violates § 2422(b) by merely attempting to persuade
a minor to engage in illegal sexual activity.”). Thus,
§ 2422(b) “criminalizes an intentional attempt to achieve
a mental state—a minor’s assent—regardless of the ac-
cused’s intentions vis-à-vis the actual consummation
of sexual activities with the minor.” Dwinells, 508 F.3d at
71; accord Goetzke, 494 F.3d at 1236 (explaining that an
attempt to violate § 2422(b) “is an attempt to achieve the
mental act of assent”). Simply put, the statute targets the
sexual grooming of minors as well as the actual sexual
exploitation of them. The statute’s focus is on the
intended effect on the minor rather than the defendant’s
intent to engage in sexual activity.
Evidence that Berg intended (or did not intend) to
engage in sexual activity with Carrie on November 11
may have been probative of his intent to persuade,
induce, or entice her to engage in sexual activity. Cf.
Goetzke, 494 F.3d at 1236 (stating that physical proximity
can be probative of an attempt to persuade a minor to
30 No. 09-2498
engage in sexual activity). Nonetheless, the government
was not required to prove such an intent in order to
sustain his conviction for an attempt under § 2422(b). The
government presented substantial evidence from which
a rational jury could find beyond a reasonable doubt
that Berg intended to persuade, induce, or entice
someone whom he believed was a minor to engage in
illegal sexual activity. Therefore Berg’s challenge to the
sufficiency of the evidence on the § 2422(b) offense fails.
B. The Prosecutor’s Remarks
The next issue is whether alleged improper remarks
in the prosecutor’s rebuttal argument denied Berg a
fair trial. We employ a two-part test to evaluate claims of
prosecutorial misconduct in closing arguments. United
States v. McMath, 559 F.3d 657, 667 (7th Cir.), cert. denied,
130 S. Ct. 373 (2009). We first consider the remarks in
isolation to determine whether they were improper, and
if so, then we consider the remarks “in the context of
the entire record and assess whether they [h]ad the
effect of denying the defendant a fair trial.” Id. (quotation
omitted). On appeal, the government admits that its
brief rebuttal remarks about the professional risk ASA
Delacruz might incur from perjury were improper.
Based on that concession, we can move directly to the
second part of the test.
In assessing the effect of improper remarks, we
consider: the nature and seriousness of the state-
ment; whether the statement was invited by the con-
duct of defense counsel; whether the district court
sufficiently instructed the jury to disregard such
No. 09-2498 31
statements; whether the defense could counter the
improper statement through rebuttal; and finally,
whether the weight of the evidence was against the
defendant.
McMath, 559 F.3d at 667 (quoting United States v. Severson,
3 F.3d 1005, 1014 (7th Cir. 1993)). Improper remarks
during closing argument “rarely rise to the level of re-
versible error . . . .” Id. (quoting United States v. Wilson,
985 F.2d 348, 353 (7th Cir. 1993)). While the remarks
may have been improper, they did not have the effect
of denying Berg a fair trial.
It is true that the remarks were not invited by
defense counsel, the district court did not instruct the
jury to disregard the improper remarks, and defense
counsel had no chance to counter the remarks since
they were made in rebuttal argument. Furthermore, the
prosecutor implied that facts not in evidence arguably
enhanced ASA Delacruz’s credibility. The government
claims that the ASA’s credibility was never at issue.
Although her credibility may not have been a key issue,
a witness’s credibility is almost always at issue. And
the prosecutor’s remarks themselves suggest that the
government thought her credibility was at issue.
Yet ASA Delacruz’s testimony about Berg’s written
statement was not necessary to the jury’s determination
of guilt. As previously discussed, the Internet chats and
Berg’s efforts to meet face-to-face with Carrie presented
a mountain of evidence of his guilt. Then Berg signed
the written statement. The jury heard evidence that he
was allowed to make changes before signing it. The jury
32 No. 09-2498
was entitled to find that Berg would not have signed
the statement if it were untrue. Detective Albrecht also
testified that even before signing the written statement,
Berg said he would not have had sex (in the sense of
sexual intercourse) with Carrie, but would have had oral
sex with her and a mutual showing of genitalia. Even
under Berg’s version of the interview, he told the
police and the ASA that he would have had oral sex
with Carrie. Berg’s failure to admit immediately that he
would have engaged in oral sex with Carrie does not
detract from the fact that he made this admission. The
trial court charged the jury with deciding whether
Berg made the statements to law enforcement and an
ASA, and if so, to decide what weight to give the state-
ments. The court instructed the jury to “consider all
matters in evidence, including . . . the circumstances
under which the statements were made.” As noted, the
jury did not have to credit Berg’s self-serving explana-
tion for why he said he would have had oral sex with
Carrie had she shown up. Finally, though Berg’s intent
to engage in sexual activity with Carrie on November 11
may be probative of his intent to persuade, induce, and
entice her to engage in sexual activity, it was his intent to
do the latter—not the former—that the government had
to prove to sustain a conviction. And there was over-
whelming evidence of Berg’s intent to persuade, induce,
and entice Carrie to engage in sexual activity.
The prosecutor’s remarks about ASA Delacruz’s credi-
bility, even if improper, do not bear the significance
that Berg places on them. We are assured that those
remarks did not have the effect of denying Berg a fair trial.
No. 09-2498 33
C. Claim of Unwarranted Sentencing Disparities
Finally, Berg contends that the district court failed to
address his claim that the mandatory minimum sentence
for a § 2422(b) conviction results in unwarranted sen-
tencing disparities, contrary to 18 U.S.C. § 3553(a)(6).
This alleged error, according to Berg, rendered his sen-
tence unreasonable. We review sentencing procedures
de novo, United States v. Panice, 598 F.3d 426, 431 (7th Cir.
2010), and review the sentence itself for reasonable-
ness, United States v. Poetz, 582 F.3d 835, 837 (7th Cir.
2009). A below-Guidelines sentence, like Berg’s, is pre-
sumptively reasonable. Id.2
The record shows that the district court addressed
Berg’s claim of unwarranted sentencing disparities. At
the sentencing hearing the court said that it “share[d]
counsel’s concern about disparity here” and stated that
courts are to avoid unwarranted sentence disparity.
According to the district court, accomplishing that in
Berg’s case was “very difficult . . . because [the sentences]
are all over the place.” The court identified ten cases and
the sentences imposed, noting the conduct for which
the defendant was convicted and other relevant infor-
mation, including the differences in the number of
images involved and the defendant’s background, among
2
Berg’s opening brief asserts that we exercise plenary review
over his claim that his sentencing proceeding failed to
comport with due process, but he fails to develop any such
argument. Therefore it is waived. United States v. Useni, 516
F.3d 634, 658 (7th Cir. 2008).
34 No. 09-2498
other factors. The court said that it mentioned some
of the cases “because . . . even a minimum statutory
sentence . . . here is years longer than some of the sen-
tences in these cases where I think the conduct . . . is
much worse.” Berg’s Guideline range was 235 to 293
months. The court sentenced Berg to 124 months, only
four months above the mandatory minimum, see 18
U.S.C. § 2422(b), and way below the Guidelines range.
“[S]entencing courts are . . . bound by the minimum
sentences set forth in the United States Code,” United
States v. Harris, 567 F.3d 846, 852 (7th Cir.) (citing
Kimbrough v. United States, [552 U.S. 85, 107,] 128 S. Ct.
558, 573 (2007), cert. denied sub nom. James v. United States,
130 S. Ct. 1032 (2009), so the court was obliged to sen-
tence Berg to at least 120 months. And the court
explained that the four months above the minimum
sentence were to account for its finding that Berg had
not been completely truthful at trial. Thus, in imposing
the 124-month, below-Guideline sentence, the court did
what it could to account for unwarranted sentencing
disparities, while not dipping below the mandatory
minimum. Nothing more was required to satisfy the
obligation to consider § 3553(a)(6). Berg has not rebutted
the presumption of reasonableness that attaches to
his below-Guidelines sentence.
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s judgment.
4-5-11