United States v. Bryan Rossi ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 17, 2022
Decided June 22, 2022
Before
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-3165
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff-Appellee, for the Central District of Illinois.
v. No. 20-CR-20017-001
BRYAN ROSSI, Michael M. Mihm,
Defendant-Appellant. Judge.
ORDER
Bryan Rossi was convicted of attempting to entice a minor to engage in criminal
sexual conduct, 18 U.S.C. § 2422(b), and sentenced to ten years in prison and five years’
supervised release. He appealed, but his appointed counsel asserts that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967).
Counsel’s brief explains the nature of the case and the issues an appeal of this kind
would involve. Because counsel’s brief appears thorough, we limit our review to the
potential issues discussed in the brief and those that Rossi raises in his response under
Circuit Rule 51(b). See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
No. 21-3165 Page 2
Rossi was arrested in 2020 after using a dating app to arrange a sexual encounter
with a 15-year-old boy. Rossi had a sexually explicit online conversation with the teen—
actually an undercover federal agent—in which he requested sexual images after learning
the boy was underage, then agreed to accept gas money and travel to the teen’s home for
sex. When he arrived at the house at the prearranged time, Rossi was arrested and
charged under § 2422(b) with attempting to entice a minor to engage in sexual activity
made criminal by 720 ILCS 5/11-1/60(d). Rossi went to trial.
The government filed several pretrial motions in limine. Rossi objected only to
the use of statements he made in his post-arrest interview, during which he admitted
that he believed he was talking to a minor, but said he would not have had sex with an
actual child. The court deferred ruling until trial. Twice before trial, Rossi affirmatively
waived defenses based on entrapment, though he planned to argue that the purported
minor’s apparent consent negated his criminal intent.
During a two-day trial, the jury heard from FBI agents, including the one who
had posed as the minor online. This agent testified that after Rossi was told he was
speaking to someone who was “almost 16,” he asked for “sexy pics” and offered to
drive to the teen’s house if he received $20 for gas. The jury also heard audio excerpts of
Rossi’s post-arrest interview after the court found the statements admissible over
Rossi’s objection. (Rossi argued they were irrelevant, but the court ruled that they were
probative of his state of mind.) At the close of the government’s case in chief, Rossi
moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29(a). The
court summarily denied the motion. Rossi did not present a defense.
The government submitted proposed jury instructions, most of them from this
circuit’s pattern instructions and a few based on our published decisions. Rossi objected
to two of the government’s proposed non-pattern instructions, 21 and 25, which
respectively stated: “It is not required for the government to prove that the defendant
intended to engage in sexual activity with the minor,” and “The minor’s willingness to
engage in sexual activity is irrelevant because, by law, a minor is unable to consent to
sexual activity.” He also suggested adding language to the government’s proposed
instruction 18, setting forth the elements of the offense, that would define the terms
“persuade,” “induce,” and “entice,” and state that “[m]erely arranging an encounter does
not meet the requirements of the law.” The court refused these changes, explaining that
the jury must deliberate on the unadorned statutory terms. The jury found Rossi guilty.
He did not move for a judgment of acquittal or a new trial. FED. R. CRIM. P. 29(c), (d).
No. 21-3165 Page 3
Rossi did not object to the presentence investigation report, which calculated a
criminal history category of I and a total offense level of 30 under the Sentencing
Guidelines, which included two additional levels for Rossi’s use of a computer.
See U.S.S.G. §§ 2G1.3(a)(3), (b)(3)(A) & (B). The guidelines range was thus 97 to 121
months, adjusted to 120 to 121 months because of the statutory minimum. See § 2422(b);
U.S.S.G. § 5G1.1(b); Sent’g Table. Rossi did not address the court at the sentencing
hearing. The court adopted the PSR and discussed Rossi’s mental health history,
achievements and aspirations, and good employment record. It sentenced him to 120–
months in prison and five years’ supervised release, each the statutory minimum term.
See § 2422(b); 18 U.S.C. § 3583(k).
In her Anders brief, counsel first correctly concludes that Rossi could not raise a
nonfrivolous challenge to the court’s admission of excerpts from his post-arrest
interview in which he said he went to the minor’s house only “for the gas money” and
would not have had sex with a child. Rossi argued the statements were irrelevant
because he conceded that he was speaking with someone under 18 years old. But he
could not show that the court overstepped its discretion by concluding Rossi’s post-
arrest statements were relevant to the knowledge element of the offense. § 2422(b);
United States v. Beavers, 756 F.3d 1044, 1052 (7th Cir. 2014).
We also agree with counsel that Rossi could not raise a nonfrivolous challenge to
the sufficiency of the evidence to convict him. The court denied his in-trial Rule 29(a)
motion for a judgment of acquittal based on insufficiency of the evidence, and Rossi did
not renew that motion under Rule 29(c) after the verdict. As a result, Rossi would have
to show on appeal that his conviction was a manifest miscarriage of justice.
See United States v. Chaparro, 956 F.3d 462, 468 (7th Cir. 2020). He would be unable to do
so because the jury received sufficient uncontested evidence that Rossi requested explicit
images of a minor, arranged a sexual encounter, then traveled to meet the minor for sex
that would have been criminal under state law. See § 2422(b); 720 ILCS 5/11-1/60(d).
Although Rossi wishes to argue that he was improperly prevented from raising an
entrapment defense, he affirmatively waived any defense based on entrapment both in
his response to the government’s trial brief and orally at a pretrial hearing.
Counsel next reviews Rossi’s preserved objections to the jury instructions and
concludes that it would be frivolous to pursue them on appeal. We would review the
district court’s decision to give or refuse to give a jury instruction for abuse of discretion.
See United States v. Hidalgo-Sanchez, 29 F.4th 915, 929 (7th Cir. 2022). First, we would be
unable to find error in the decision not to define the terms “persuades,” “induces,”
No. 21-3165 Page 4
“entices” and “coerces” as Rossi proposed. Rossi relied on United States v. Clarke,
842 F.3d 288 (4th Cir. 2016), for his definitions, but in that case, as here, the district court
ruled that the jury should apply the ordinary meanings of the terms. See id. at 296–97.
And we have already rejected vagueness challenges to § 2422(b), explaining that
Congress intended the factfinder to consider the specific nature of the defendant's efforts
to persuade the minor. United States v. McMillan, 744 F.3d 1033, 1036 (7th Cir. 2014).
Counsel also correctly concludes that the district court appropriately declined
Rossi’s proposed addition to the same instruction: “Merely arranging an encounter does
not meet the requirements of the law.” True, “speech alone” is not a substantial step in
an attempt to entice. United States v. Chambers, 642 F.3d 588, 594 (7th Cir. 2011). But
specific intent to engage in sexual activity can be proven by a “a face-to-face meeting in
the course of a grooming process,” particularly—as here—when preceded by requests
for explicit images and an exchange of value. See United States v. Berg, 640 F.3d 239, 246–
47 (7th Cir. 2011)).
Second, we agree with counsel that the district court did not abuse its discretion by
overruling Rossi’s objections to two other instructions because they were correct statements
of the law. See United States v. Bloom, 846 F.3d 243, 255 (7th Cir. 2017). Rossi sought to strike
the instructions: “It is not required for the government to prove that the defendant
intended to engage in sexual activity with the minor” and “The minor’s willingness to
engage in sexual activity is irrelevant because, by law, a minor is unable to consent to
sexual activity.” But we have held that § 2422(b) criminalizes procuring a minor’s assent to
sexual activity, not engaging in sexual activity, and the legal age of consent in Illinois is
17 years old. See 720 ILCS 5/11-1.70(b); Berg, 640 F.3d at 243, 250. It was therefore
reasonable for the court to conclude that these instructions would aid the jury.
Rossi’s response proposes appellate challenges to two other jury instructions, but
his counsel approved those instructions after discussion on the record, thereby waiving
further challenges to them. See United States v. Hicks, 15 F.4th 814, 816 (7th Cir. 2021).
Turning to sentencing, counsel advises us that Rossi could make no nonfrivolous
argument that his sentence was the result of procedural error. Rossi did not object to the
PSR, and so we would review for plain error. See United States v. Brown, 823 F.3d 392, 394
(7th Cir. 2016). Rossi has no grounds for challenging the base offense level of 28 or the
two-level increase for using a computer as incorrect. See U.S.S.G. §§ 2G1.3(a)(3); (b)(3)(A)
and (B). And the court correctly adjusted the guidelines range to incorporate the statutory
minimum term of imprisonment. See § 3583(k); U.S.S.G. § 5G1.1(b). The court also
No. 21-3165 Page 5
properly acknowledged the statutory and guidelines ranges of supervised release for
Rossi’s offense—five years to life—and exercised its discretion not to impose a longer
term. See United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009) (failing to compare
statutory and guidelines ranges for supervised release may be procedural error).
Finally, counsel correctly concludes that it would be pointless for Rossi to
challenge the substantive reasonableness of his sentence. On appeal, we would presume
that his prison and supervised-release terms, which are within the applicable guidelines
ranges, are reasonable. See United States v. Major, 33 F.4th 370, 384 (7th Cir. 2022) (prison
term), United States v. Oliver, 873 F.3d 601, 610–11 (7th Cir. 2017) (supervised release).
The court lacked discretion to impose a sentence below the statutory minimum.
See United States v. Douglas, 569 F.3d 635, 636 (7th Cir. 2009). And the court imposed the
minimum following a discussion consistent with the factors under 18 U.S.C.
§ 3553(a)(1)—especially Rossi’s achievements, aspirations for the future, and other
personal characteristics. See Major, 33 F.4th at 380.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.