United States v. Michael Clemans ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10035
Plaintiff-Appellee, D.C. No.
2:15-cr-00227-JAM-1
v.
MICHAEL CAREY CLEMANS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted February 4, 2020
San Francisco, California
Before: PAEZ and BEA, Circuit Judges, and JACK,** District Judge.
Michael Clemans appeals the district court’s denial of his motion for
acquittal under Rule 29 of the Federal Rules of Criminal Procedure. He also
argues the district court committed numerous sentencing errors. Reviewing de
novo the district court’s denial of Clemans’s Rule 29 motion, Jackson v. Virginia,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.
443 U.S. 307, 319 (1979), and for plain error the sentencing errors, Johnson v.
United States, 520 U.S. 461, 467 (1997), we affirm.
1. There was sufficient evidence for a jury to convict Clemans of traveling
or attempted travel with the intent to engage in illicit sexual conduct in violation of
18 U.S.C. § 2423(b) and (e) (Count One). Numerous chat messages between
Clemans and Nelia Cruz, a woman who helped recruit minor girls for Clemans in
Manila, Philippines, demonstrate that when Clemans left the United States, he had
the requisite intent to engage in illicit sex. In the days leading up to Clemans’s
departure from the United States, Clemans shared with Cruz his desire to have sex
with minors, the types of girls he preferred, the price he was willing to pay, and the
locations in which he felt comfortable having sex with them. Thus, even though
Clemans had not finalized his itinerary to Manila, a jury could reasonably infer that
when he traveled from the United States to Thailand, he intended to continue his
travel to Manila to engage in illicit sexual conduct.
2. A rational jury could conclude that Clemans conspired to travel with the
intent to engage in illicit sexual conduct (Count Two). The record contained
evidence that Clemans entered an agreement with Lyan Tandeg, another woman
with whom Clemans communicated to recruit minor girls in Manila, with the intent
that Clemans travel to the Philippines to have sex with girls. Clemans paid Tandeg
to find, photograph, and arrange sex with minors in the Philippines. Clemans’s
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overarching agreement necessarily implied that he would travel from the United
States to Manila, thus meeting the requisite jurisdictional nexus.
3. A rational jury could conclude that Clemans “offered” to purchase or
otherwise take temporary custody of children knowing they would appear in
pornography, in violation of 18 U.S.C. § 2251A(b)(1)–(2), (c)(2) (Count Four).
Clemans asked Tandeg to make offers to parents to recruit their children for child
pornography. Even though Clemans did not speak directly with the parents,
nothing in the statute suggests that a defendant must communicate directly with the
parents to constitute an “offer.” See § 2251A. Further, the statute neither specifies
to whom the offer must be made nor suggests that a defendant can escape criminal
liability by making the offer to an intermediary, rather than to the parent directly.
See id. Thus, even though Clemans conveyed his offers to Tandeg, and instructed
her to convey those offers to parents, that conduct was sufficient to meet
§ 2251A’s jurisdictional nexus.
4. Lastly, even assuming the district court committed clear or obvious errors
at sentencing by (1) applying the wrong guidelines section to calculate Clemans’s
offense levels for his convictions for Count Two and conspiracy to produce child
pornography (Count Three, 18 U.S.C. § 2251(c), (e)); (2) applying the two-level
enhancement for conspiring to produce images that contain violent conduct or
infants under United States Sentencing Guidelines (“U.S.S.G.”) § 2G2.1(b)(4)(A)–
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(B); (3) creating a separate group for Count Four rather than including it in Groups
Three, Four, and Five; and (4) denying Clemans a two-level reduction for
acceptance of responsibility; Clemans fails to demonstrate that his guidelines range
would have been different. With or without the adjustments, Clemans’s total
offense level would have exceeded 43, and thus still placed him at a recommended
sentence of life imprisonment. See U.S.S.G. § 5A, cmt. 2. We therefore cannot
say any error was plain.
AFFIRMED.
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