United States v. Robinson ( 2021 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 2, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-1256
JALIL LEMASON ROBINSON, a/k/a
Talk Big,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:18-CR-00144-PAB-1)
_________________________________
Ryan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, P.C., Tulsa,
Oklahoma, for Defendant-Appellant.
J. Bishop Grewell, Assistant United States Attorney (Jason R. Dunn, United States
Attorney with him on the briefs), Denver, Colorado for Plaintiff-Appellee.
_________________________________
Before HARTZ, MATHESON, and CARSON, Circuit Judges.
_________________________________
CARSON, Circuit Judge.
_________________________________
“Talk Big” doubled as Defendant Jalil Lemason Robinson’s handle on a dating
website and his strategy for recruiting seventeen-year-old Nikki from Colorado to work
for him as a prostitute on that same site. Promising a life of luxury, Defendant convinced
Nikki, who originally represented herself as eighteen-year-old Brooke, to come join him
as his “business partner” in California. Little did he know he was communicating with an
undercover officer posing as Nikki.
Defendant’s actions led to a jury convicting him of attempted sex trafficking of a
minor under 18 U.S.C. § 1591(a)—Congress’ response to the growing problem of
domestic sex trafficking. Defendant claims the government produced insufficient
evidence to find him guilty of attempted sex trafficking of a minor. The record
establishes the contrary. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm
Defendant’s conviction and sentence of 188 months’ imprisonment.
I.
FBI task force officer, Agent Tangeman, created a fictional social media profile on
a dating website. Tangeman’s character—Brooke—claimed to be an eighteen-year-old
from Aurora, Colorado.1 Although Brooke had a profile on the adult dating site, the
website could not guarantee her age because it relied on self-verification to confirm its
users’ ages. Defendant maintained a profile on the same website going by “Talk Big.”
Defendant promoted: “40 hours for 350 a week or 1500 a night, choose wisely.”
Through his profile, Defendant sought a business partner—meaning a prostitute—ideally
1
We refer to Brooke/Nikki by these names at the appropriate times throughout
the opinion even though she is not a real person. Agent Tangeman crafted Nikki’s
messages and he used a confidential source for the phone call.
2
age eighteen to thirty-five. Defendant contacted Brooke, but several weeks passed before
she responded. Once in contact, their conversations quickly progressed.
Defendant offered Brooke a life of luxury as his “business partner” and offered
to “show her the way” by taking her to a few strip clubs and sharing other resources.
Intrigued, Brooke asked how much money she could make. His response, “Baby we
can make hella money” and left her his number.
Brooke texted him the next day and broke the news that she was only
seventeen years old and that her real name was Nikki. Despite learning Nikki’s age,
Defendant continued the conversation and his plans. When Nikki showed hesitation
and fear, Defendant reassured her and promised a life of luxury. The next day, they
talked on the phone to shore up plans for Nikki’s eventual prostitution. Defendant
said Nikki would need a fake ID for “safety” until she turned eighteen. Defendant
said he was eager to teach Nikki to become “perfection” by the time she turned
eighteen, and seduced her with promises of earning big money in a short amount of
time. Portraying herself as vulnerable and eager to leave Colorado and make money,
Nikki succumbed to Defendant’s promise of a lavish life and agreed to travel to
Defendant in California. As promised, Defendant showed up at a California bus
terminal to meet Nikki. There, federal law enforcement agents confronted and
arrested him. Authorities charged Defendant with attempted sex trafficking of a
child and transporting an individual to engage in prostitution.
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Defendant asserted at trial that he planned to keep things strictly platonic until
Nikki’s eighteenth birthday. But the jury did not buy it and found Defendant guilty
on both counts.
II.
Defendant claims prosecutors presented insufficient evidence to support his
conviction for attempted sex trafficking of a minor in violation of 18 U.S.C.
§ 1591(a). He also claims the district court erred by (1) denying his request for an
entrapment jury instruction; (2) denying his request to compel the government to
disclose its confidential source; (3) admitting Agent Tangeman’s lay and expert
testimony at trial; and (4) by failing to admit a trial exhibit in its entirety. Defendant
finally contends he was prejudiced by cumulative error and received a substantively
unreasonable sentence.
A.
Defendant claims the government presented insufficient evidence to convict
him. We review de novo whether there was sufficient evidence to support a
defendant’s convictions. United States v. Isabella, 918 F.3d 816, 830 (10th Cir.
2019). In doing so, we view the evidence and any reasonable inferences drawn from
it in the light most favorable to the government. Id. “We consider all evidence,
circumstantial and direct, but we do not weigh the evidence or consider credibility of
the witnesses.” Id. (citing United States v. Rufai, 732 F.3d 1175, 1188 (10th Cir.
2013)). “We will reverse a conviction for insufficient evidence only when no
reasonable jury could find the defendant guilty beyond a reasonable doubt.” Id.4
(citing United States v. Anaya, 727 F.3d 1043, 1050 (10th Cir. 2013)). “We will not
uphold a conviction, however, that was obtained by nothing more than piling inference
upon inference, or where the evidence raises no more than a mere suspicion of
guilt.” United States v. Rahseparian, 231 F.3d 1257, 1262 (10th Cir. 2000) (internal
citations and quotation marks omitted) (first citing United States v. Fox, 902 F.2d 1508,
1513 (10th Cir. 1990); then citing United States v. Smith, 133 F.3d 737, 742 (10th Cir.
1997)).
To convict Defendant under 18 U.S.C. § 1591(a), the government had to prove
beyond a reasonable doubt that: (1) Defendant knowingly attempted to recruit, entice,
harbor, transport, provide, obtain, maintain, patronize, or solicit Nikki; (2) Defendant
knew or recklessly disregarded that Nikki was under the age of 18 and would be caused
to engage in a commercial sex act; and (3) the offense was in or affecting interstate
commerce. Defendant admitted at trial that he knowingly recruited seventeen-year-old
Nikki to engage in commercial sex acts. He contends, however, that the trial evidence
did not demonstrate that he intended for her to engage in those commercial sex acts while
still a minor. In considering his sufficiency claim, we first discuss the text message and
phone call evidence from trial. Then we review Agent Tangeman’s testimony.
1.
Although a short-lived digital connection, Defendant eagerly laid the foundation to
gain Nikki’s trust and helped plan her move. Defendant eased Nikki’s apprehension
about joining the “business” by telling her he would take care of her as he worked to
develop a bond through their interactions on the dating app. He filled her mind with
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dreams of making big money in a short amount of time. Defendant’s messages and
phone calls support the inference that he intended for Nikki to engage in commercial sex
acts before she turned eighteen.
In their first substantial text message conversation, Nikki told Defendant that she
was only seventeen years old. Even though he testified at trial that this disclosure made
him hesitant to proceed, Defendant did not withdraw from the conversation. Instead,
Defendant immediately responded, “We will talk more on us when I get there, just need
you to hang tight until I get there, okay?”
To address this new-found information, Defendant suggested Nikki obtain a fake
ID to use until her birthday for “safety.” He said they should take the Greyhound bus
from Colorado to California because she did not have an ID. Defendant then asked Nikki
if her aunt would react negatively to her leaving the state because he did not want any
problems. Nikki said there would be no problems if she checked in. Defendant
responded: “I mean until your 18 then they can’t say shit about where or how you do
your Life”; “I just don’t want any issues ya know”; and “We would have to keep things
hella discreet.” He later said: “But on your birthday we will be doing things bigger and
better.” At no point did Defendant withdraw his plans to bring Nikki to California.
Rather, he dove deeper into the plan by suggesting Nikki needed a fake ID, ensuring her
family would not miss her, and insisting things remain “hella discreet.” From these
statements, the jury could reasonably infer Defendant intended for Nikki to engage in
commercial sex acts before she turned eighteen.
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Defendant also insisted on talking to Nikki over the phone. To oblige, she called
him the next day. Nikki disclosed she had a rough home life and that she could leave her
aunt and uncle without issue. Defendant seemed concerned about her age, but said: “I
still might if I could use a little bit of time that you got until your 18th birthday and
stalling, and you know teaching you how things go then by the time you do reach the age
then you’ll be perfection.” Defendant again brought up the need for a fake ID “for
safety.” He then described the rates for various types of “dates.” Defendant offered to
teach Nikki “what to do, when to do it, and how to do it.” Within two weeks of their
initial conversation and five to six months before her eighteenth birthday, Defendant
bought Nikki a $224 one-way bus ticket so she could join him in California.
Throughout their correspondence, Defendant repeatedly asked Nikki to send him
nude photos. When she refused, he said: “Guess you not gonna let me see what belongs
to me.” Defendant tried to convince the court that he requested the nude photos to
establish Nikki was a real person. But the records showed that when Nikki remained
reluctant to send nude photos, Defendant said, “Once we’re together there’s gonna be
more than just taking pics.”
Defendant’s request for discretion, insistence she obtain a fake ID for “safety” and
generally cautious approach support the inference that he intended for Nikki to engage in
commercial sex acts as a minor. At trial, Defendant tried to explain Nikki needed the
fake ID for use in legal activities—but fake ID use inherently leads to participation in
illegal activity. Finally, he promised to make her perfection and commented that “more
than just taking pics” would happen once they were together. Armed with this evidence,
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a jury could reasonably infer Defendant intended for Nikki to engage in commercial sex
acts before she turned eighteen.
2.
Besides Defendant’s texts, phone conversations, and testimony, Agent
Tangeman’s expert testimony also supports the jury’s conclusion that Defendant intended
for Nikki to engage in commercial sex acts as a minor. Agent Tangeman is an
investigator with the Arapahoe County Sheriff’s Office, which assigned him to work with
the FBI Innocence Lost Task Force (“Task Force”). In that role, he investigates crimes
involving the sexual exploitation of children and human trafficking. Agent Tangeman
explained on direct examination how pimps recruit trafficking victims, the types of
individuals pimps seek, and the relationship that develops between pimps and victims.
He emphasized how a pimp tells his victim that he will provide emotional support,
material things, travel, and generally promise a lavish lifestyle. Defendant did just this
throughout his communications with Nikki. In their extended messaging, Defendant told
her “I promise if you stick around and really go hard for me I will bless you with
everything I can possibly give you[.]” Defendant made most of these promises after he
learned Nikki was a minor.
Agent Tangeman also discussed how pimps protect themselves when they know
their recruit is a minor. For example, he discussed that pimps generally obtain a fake ID
for the underage child to alleviate culpability. As an expert, Agent Tangeman opined that
a pimp’s request to delete messages and insistence on discretion are designed to protect
themselves when pimping a minor. Defendant told Nikki she needed a fake ID, regularly
8
requested she delete messages, and had Nikki ensure her departure would not raise issues
with her family. Agent Tangeman’s testimony about how pimps treat underage recruits
and Defendant’s behavior support the reasonable inference that Defendant intended to
have Nikki engage in commercial sex acts while still a minor. In addition, a different FBI
special agent also testified that, in his experience, pimps did not wait to have their victim
engage in commercial sex acts until they reached the age of majority. In reviewing all
the evidence in a light most favorable to the government, we conclude evidence exists in
the record sufficient to support the jury’s determination that Defendant intended for Nikki
to engage in commercial sex acts while still a minor.
B.
Defendant next appeals the district court’s denial of his request for an entrapment
jury instruction. We review the court’s refusal to provide the entrapment defense jury
instruction de novo. United States v. Scull, 321 F.3d 1270, 1274 (10th Cir. 2003) (citing
United States v. Ortiz, 804 F.2d 1161, 1164 (10th Cir. 1989)). Because “‘[t]he question
of entrapment is generally one for the jury, rather than for the court,’” an entrapment jury
instruction is appropriate only when a defendant produces “‘sufficient evidence from
which a reasonable jury could find entrapment.’” United States v. Vincent, 611 F.3d
1246, 1250 (10th Cir. 2010) (first quoting Mathews v. United States, 485 U.S. 58, 63
(1988); then quoting Scull, 321 F.3d at 1275). “For the purposes of determining the
sufficiency of the evidence to raise the jury [instruction] issue, the testimony most
favorable to the defendant should be accepted.” Scull, 321 F.3d at 1275 (quoting United
States v. Reyes, 645 F.2d 285, 287 (5th Cir. 1981)) (quotation marks omitted).
9
To prevail, Defendant must show that: (1) the government agents induced him to
commit the offense; and (2) that he was not otherwise predisposed to commit the offense,
if given the opportunity. See United States v. Ngyuen, 413 F.3d 1170, 1178 (10th Cir.
2005) (quoting United States v. Young, 954 F.2d 614, 616 (10th Cir. 1992)).
“‘[G]overnment conduct which creates a substantial risk that an undisposed person or
otherwise law-abiding citizen would commit the offense’” constitutes inducement. Scull,
321 F.3d at 1275 (quoting Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986)). “Evidence that a
government agent solicited, requested or approached the defendant to engage in criminal
conduct, standing alone, is insufficient to constitute inducement.” Ortiz, 804 F.2d at
1165. Evidence that the government initiated contact with the defendant or proposed the
crime does not rise to inducement. Id.Defendant contends that the government’s use of a dating website limited to
persons over eighteen years old led him to reasonably believe he was talking with an
adult when he started his conversation with Brooke/Nikki. Thus, he argues, the
government’s conduct (delay in disclosing Nikki was underage) shows agents induced
him to engage in illegal conduct with a minor. We disagree.
When the government disclosed Nikki was underage, it provided Defendant with
an out he refused to take. See United States v. Munro, 394 F.3d 865, 871–72, n.2 (10th
Cir. 2005) (finding no entrapment jury instruction was warranted where the government
offered a chance to back out of the potential crime). Despite learning Nikki’s age,
Defendant caused the relationship to progress. Far from ending things, Defendant kept
communicating with Nikki, made plans to obtain her fake ID, and asked her to delete
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messages and keep things discrete. He even bought her a bus ticket so she could move to
California and live with him prior to her eighteenth birthday. He told her they could use
the time awaiting her birthday to make her “perfection.” He asked Nikki to send nude
photos, and chastised her for her reluctance to send them. The government did not start
these advancements and therefore, did not induce Defendant to engage in conduct with a
minor. When the government does not induce the conduct, there can be no entrapment.2
Sufficient evidence does not support the conclusion that a reasonable jury could
find entrapment. The evidence instead shows Defendant continued to engage in
recruitment activity after he learned Nikki’s real age. For this reason, the district court
did not err in denying Defendant’s request for an entrapment jury instruction.
C.
Defendant also appeals the denial of his request that the government disclose its
confidential source’s identity. “We review the denial of a defendant’s motion for
disclosure of an informant’s identity for abuse of discretion.” Vincent, 611 F.3d at 1251
(citing United States v. Martinez, 979 F.2d 1424, 1426 (10th Cir. 1992)). The
government enjoys a privilege to withhold disclosure of a confidential source’s identity
due to a strong public interest in furthering effective law enforcement. Id. (citing United
States v. Mendoza-Salgado, 964 F.2d 993, 1000 (10th Cir. 1992)). Disclosure is proper
when the “‘informer’s identity . . . is relevant and helpful to the defense of an accused, or
is essential to a fair determination of a cause.’” Id. (quoting Roviaro v. United States,
2
Because Defendant’s entrapment argument fails on the inducement prong, we
need not consider the predisposition prong.
11
353 U.S. 53, 60–61 (1957)). But when the identity is not relevant, helpful, or serves
merely a cumulative purpose, we have not required disclosure. See Mendoza-Salgado,
964 F.2d at 1000–01.
Defendant claims his entrapment defense requires the government’s disclosure of
the confidential source’s identity. Relying on Roviaro, Defendant asserts that because he
raised a plausible entrapment defense, he may confront the confidential source to obtain
information about his entrapment defense. Defendant, however, misreads Roviaro. In
Roviaro, the confidential informant played an active role in the charged illegal activity.
353 U.S. at 58–59. There, the government sought to keep the informant’s identity
privileged, even though the informant could provide information about certain parts of
the transaction not otherwise available to the defendant. Id. The court permitted
disclosure of the confidential informant because the confidential informant’s identity and
testimony were highly relevant and material to the defense. Id. at 62–64.
Unlike Roviaro, the district court admitted transcripts of all conversations between
the confidential source and Defendant into evidence. They had no other contact. Thus,
the confidential source would have added nothing new and her testimony would have
been unnecessarily cumulative. Even so, Defendant contends the confidential source
could help him prove inducement. Defendant’s continued contact and communication
with Nikki after she disclosed her age shows the government did not induce Defendant.
In fact, as discussed above, the opposite remains true. Moreover, disclosure and
testimony from the confidential source would not add to the entrapment defense. Unlike
in Roviaro, Defendant participated in all the conversations that included the confidential
12
source and never disputed that the transcripts the government provided to him accurately
captured the words spoken between Defendant and the informant. Thus, unlike Roviaro,
Defendant could not obtain any non-cumulative evidence from the confidential source.
Thus, Defendant cannot show the district court abused its discretion in denying the
motion to disclose the confidential source.
D.
Next, Defendant argues the district court erred in admitting Agent Tangeman’s
expert testimony. We review the decision to admit or exclude expert testimony for an
abuse of discretion. United States v. Abdush-Shakur, 465 F.3d 458, 466 (10th Cir. 2006).
1.
Defendant contends the district court erred by allowing Agent Tangeman to
provide expert testimony at trial about the pimping and prostitution culture. Defendant
claims that because some of this testimony bore no relevance to the elements of the
charged offense, the district court inappropriately admitted it under Federal Rules of
Evidence 401, 403, and 702.3 We disagree.
In urging reversal, Defendant relies on our decision in Abdush-Shakur where we
held the district court did not abuse its discretion by excluding expert culture testimony
3
Defendant briefly asserts that the generalities about pimps and pimping
culture should have been excluded under these evidentiary rules. Because Defendant
does not develop any argument in his opening brief specific to these rules, he
effectively waives this argument. See United States v. Cooper, 654 F.3d 1104, 1128
(10th Cir. 2011) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th
Cir. 1998) (“It is well settled that [a]rguments inadequately briefed in the opening
brief are waived.”) (internal quotation marks omitted)).
13
because it lacked relevancy to an element of the charged offense. Id. at 466–67. In that
case, the government charged the defendant with attempted murder and possession of a
prohibited object in violation of 18 U.S.C. §§ 113 and 1791(a)(2). Id. at 460. At trial,
the defendant offered expert testimony about the “culture of violence” in federal
penitentiaries to explain his violent retaliation toward a disrespectful officer. Id. at 466.
The defendant claimed he intended only to wound the officer and not kill him and that the
expert testimony explained his motive. Id. The court found the expert’s testimony was
not relevant to the defendant’s case. Id. The court reasoned that while the defendant’s
proffered expert testimony might show a generic culture of violence in prisons and
establish the defendant did not respond unusually for a prisoner, the testimony did not
legally excuse his attack on the corrections officer by negating an element of the crime.
Id. at 466–67. Because the expert testimony did not negate the mens rea, the district
court properly excluded it because the testimony was not relevant. Id. at 467.
The government’s use of cultural testimony differs here. Agent Tangeman’s
testimony provided a basis on which the jury could infer that Defendant recruited a
vulnerable girl seeking structure and stability in her life. Unlike Abdush-Shakur, the
government here used expert cultural testimony along with the communications between
Defendant and Nikki to show that Defendant intended to have Nikki engage in
commercial sex acts while still a minor. So, the expert testimony related to an element of
the crime. For this reason, the district court did not abuse its discretion by allowing
Tangeman to provide expert testimony on pimping and prostitution culture.
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2.
Defendant next complains the district court improperly allowed Tangeman to
testify as both a fact and expert witness without providing his requested jury instructions.
We review the jury instructions given by the court, de novo “to determine whether, taken
in their entirety, they correctly informed the jury of the governing law.” Gust v. Jones,
162 F.3d 587, 596 (10th Cir. 1998) (citing Summers v. Mo. Pac. R.R. Sys., 132 F.3d
599, 606 (10th Cir. 1997)). Waiver occurs, however, when a party invites the error
below. See United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir. 2008).
Although Defendant now complains about the lack of a jury instruction on
Agent Tangeman’s expert and fact testimony, he did not object (and in fact agreed) to
the jury instruction about Tangeman’s testimony before the district court. He has
therefore invited any error caused by the lack of instructions and has waived his right
to challenge them. United States v. Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012)
(“Under the invited error doctrine, this Court will not engage in appellate review
when a defendant has waived his right to challenge a jury instruction by affirmatively
approving it at trial.”).
E.
At trial the government sought to enter its Exhibit 47, a 207-page document of
comments, including comments from Defendant, from the online dating site, into
evidence. Defendant objected, arguing that many pages of Exhibit 47 were not relevant
and should be excluded. The court sustained the objection and, without further objection
from defense counsel, required the government to admit only the relevant pages one at a
15
time. Ironically, Defendant now claims that the government’s 207-page Exhibit 47
contained exculpatory statements and that the district court erred by not admitting those
statements under Federal Rule of Evidence 106.
Defendant acknowledges his failure to present this argument to the district court
and, requests that we review the district court’s failure to admit (presumably sua sponte)
these purportedly exculpatory statements for plain error. But plain error review is
reserved for forfeited arguments, not arguments occasioned by the district court’s
adoption of a defendant’s own erroneous suggestion. United States v. Carrasco-Salazar,
494 F.3d 1270, 1272 (10th Cir. 2007); see also United States v. Hardwell, 80 F.3d 1471,
1487 (10th Cir. 1996) (“A defendant cannot invite a ruling and then have it set aside on
appeal.”). Here, the government’s proposed exhibit contained the exculpatory statements
Defendant now says the district court should have admitted. But Defendant caused their
exclusion through his own relevance objection to the district court. As a result, if the
district court erred by not admitting evidence it did not know Defendant believed was
exculpatory, the error was invited. And unlike forfeited arguments, which we review for
plain error, invited errors are waived and we do not review them at all. See United States
v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir. 2009).
F.
Defendant next argues that even if we determine the district court’s errors were
harmless, the aggregation of those errors leads to cumulative error. “Cumulative error
cannot be predicated on non-errors.” United States v. Oldbear, 568 F.3d 814, 825 (10th
Cir. 2009). Nor can it be predicated on invited error. United States v. Lopez-Medina, 596
16
F.3d 716, 733 n.10, 741 (10th Cir. 2010). Because Defendant identifies, at most, invited
error, we reject his cumulative error argument.
G.
Defendant lastly argues his sentence was substantively unreasonable. We
review a sentence for reasonableness. United States v. Kristl, 437 F.3d 1050, 1053
(10th Cir. 2006). A sentence within the Guidelines range is presumed reasonable.
Id. at 1054. On reasonableness review, we ask whether the district court abused its
discretion. United States v. Smart, 518 F.3d 800, 805–06 (10th Cir. 2008).
Defendant contends his 188-month sentence is substantively unreasonable for
two reasons. First, he argues his sentence resulted from Tangeman’s alleged
outrageous government conduct. Defendant asserts that decreasing Nikki’s age to
seventeen years old amounts to outrageous government conduct. It does not. “The
outrageous conduct defense . . . is an extraordinary defense that will only be applied
in the most egregious circumstances.” United States v. Pedraza, 27 F.3d 1515, 1521
(10th Cir. 1994). “To succeed on an outrageous conduct defense, the defendant must
show either: (1) excessive government involvement in the creation of the crime, or
(2) significant governmental coercion to induce the crime.” Id. (citing United States
v. Mosley, 965 F.2d 906, 908 (10th Cir. 1992)).
Defendant’s claim that the government created the crime by misrepresenting
Nikki’s age lacks merit. The dating website only requires the participant to click and
verify his or her age. This simple verification process allows minors to easily join the
site. Defendant unreasonably assumes all users are at least eighteen years old. So the
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government’s decision to make Nikki a minor on a website that requires minimal age-
verification does not amount to outrageous government conduct.
More importantly, Defendant reached out to Brooke/Nikki and put in motion the
plan to pursue a “business partnership.” And despite Defendant’s claim that the
government coerced him into the crime through Nikki’s continued conversations and
plans to meet, a review of the conversations in the appellate record shows the contrary to
be true. The conversations continued long after Nikki revealed her true age. Defendant
maintained contact, pressed to meet her, and bought her a bus ticket to California from
Denver. Defendant claims Tangeman “induced” him to commit a different crime solely
so the government could unfairly seek an enhanced sentence. But his claim is without
merit. The government offered Defendant several opportunities to call off his plans with
Nikki. Her admission to being seventeen years old was the most obvious one. Even so,
Defendant continued communicating with her after the age revelation and cultivated their
relationship for the future. Defendant provides no evidence that excessive government
involvement existed in the creation of the crime nor does evidence support significant
governmental coercion to induce the crime.
Defendant next argues his sentence is unreasonable because he accepted
responsibility. Defendant believes he should get credit for admitting to his intent to
prostitute Nikki when he believed her to be eighteen. Such an admission does not
constitute acceptance of responsibility. Rather, as the district court properly found,
Defendant’s request for acquittal on both charged offenses shows he did not accept
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responsibility. For these reasons, we conclude Defendant’s sentence was not
substantively unreasonable.
AFFIRMED.
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