United States v. Shawn Engle , 676 F.3d 405 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 10-4850
SHAWN F. ENGLE, a/k/a Shawn
Forrest Engle,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(2:09-cr-00070-RGD-FBS-1)
Argued: December 7, 2011
Decided: February 29, 2012
Before SHEDD, DIAZ, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the opin-
ion, in which Judge Diaz and Judge Floyd joined.
COUNSEL
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Robert John Krask, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF:
2 UNITED STATES v. ENGLE
Michael S. Nachmanoff, Federal Public Defender, Alexan-
dria, Virginia, Richard J. Colgan, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellant. Neil H. Mac-
Bride, United States Attorney, Alexandria, Virginia, Kather-
ine Lee Martin, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.
OPINION
SHEDD, Circuit Judge:
A federal jury convicted Shawn Engle on one count of sex-
ual exploitation of a minor (Count 1), see 18 U.S.C.
§ 2251(a); three counts of attempted enticement of a minor
(Counts 6-8), see 18 U.S.C. § 2422(b); and nine counts of wit-
ness tampering (Counts 3-5 and 9-14), see 18 U.S.C. § 1512.
The district court sentenced Engle to concurrent imprison-
ment terms of 360 months on the sexual exploitation count,
240 months on the witness tampering counts, and 480 months
on the attempted enticement counts, and it placed him on
supervised release for a term of life.1
On appeal, Engle seeks to set aside his conviction on Count
1, arguing that the district court erred by denying his pretrial
motion to dismiss that count for improper venue. He also
seeks to set aside his convictions on Counts 6-8, arguing that
the court erred by denying his motion for judgment of acquit-
tal based on insufficiency of evidence. Additionally, Engle
contends that he is entitled to be resentenced because the
court plainly erred by denying him the right to allocute before
imposing sentence. Finding no merit to these contentions, we
affirm.
1
Engle was charged in Count 2 with possession of child pornography,
but the district court dismissed that count at the government’s request.
UNITED STATES v. ENGLE 3
I
We begin with a brief overview of the relevant facts and
criminal statutes. In 2008, Engle, who was then 30-years old,
began communicating separately via internet and telephone
with 17-year-old "A.M." and 13-year-old "K.M." At the time,
Engle lived in Virginia, A.M. lived in Pennsylvania, and K.M.
lived in South Carolina.
Engle communicated with A.M. for several weeks, during
which time he sent her (among other things) naked photo-
graphs of himself. Engle twice traveled to Pennsylvania to
visit A.M., and on the second visit, he used a video camera
to record the two of them having sex. Engle and A.M. had no
further physical contact after this encounter. The sexually
explicit recording involving A.M. was later found by law
enforcement officers in Virginia during a search of Engle’s
vehicle. As a result of this conduct, Engle was indicted in
Count 1 for violating § 2251(a).
K.M. came from a troubled family environment, and Engle
communicated with her over a longer period of time. Engle
cultivated an emotional attachment between them, and he ulti-
mately traveled to South Carolina, picked up K.M., and
returned with her to Virginia. K.M. stayed with Engle for sev-
eral weeks, and they had sexual relations during this time.
Eventually, law enforcement arrested Engle, and he was
charged with state-law crimes in Virginia and South Carolina.
While he was incarcerated in Virginia pending trial, Engle
communicated by mail and telephone with K.M. and her
mother, "C.M.," in an effort to have them falsify evidence for
him.2
2
Four of these communications are the subject of the witness tampering
charges underlying Counts 9-11 and 14. Engle also communicated with
other witnesses, and those communications underlie the witness tampering
charges in Counts 3-5 and 12-13.
4 UNITED STATES v. ENGLE
Also while incarcerated, Engle had three communications
(2 letters, one telephone call) with K.M. in which he
expressed his love for her and his desire to reunite with her.
In these communications, he made multiple references to their
past sexual experience and to his desire to resume their sexual
contact upon his release. Based on these communications,
Engle was indicted in Counts 6-8 for violating § 2422(b).
Pertinent to this opinion, §§ 2422(b) and 2251(a) "proscribe
related conduct," United States v. Lee, 603 F.3d 904, 913
(11th Cir. 2010), in that both statutes "aim to criminalize the
enticement of a minor to engage in sexual activity," United
States v. Searcy, 418 F.3d 1193, 1196-97 (11th Cir. 2005).3
To obtain a conviction for enticement under § 2422(b), the
government must prove that the defendant: (1) used a facility
of interstate commerce; (2) to knowingly entice or attempt to
entice any person under the age of 18; (3) to engage in illegal
sexual activity. United States v. Douglas, 626 F.3d 161, 164
(2nd Cir. 2010), cert. denied, 131 S.Ct. 1024 (2011). Section
2422(b) "does not require that the sexual contact occur, but
that the defendant sought to persuade the minor to engage in
that conduct." United States v. Barlow, 568 F.3d 215, 219
n.10 (5th Cir. 2009).
To obtain a conviction for sexual exploitation of a minor
(enticement) under § 2251(a), the government must prove
that: (1) the defendant knowingly enticed a person under the
age of 18; (2) to take part in sexually explicit conduct for the
purpose of producing a visual depiction of that conduct; and
3
The terms "persuade," "induce," and "entice" appear in both statutes,
but they are not statutorily defined. Being words of common usage, we
accord them their ordinary meaning. United States v. Broxmeyer, 616 F.3d
120, 125 (2nd Cir. 2010). In ordinary usage, the words are effectively syn-
onymous, and "the idea conveyed is of one person leading or moving
another by persuasion or influence, as to some action [or] state of mind."
Id. (citation omitted and internal punctuation altered). The specific defini-
tions of these words are not at issue; therefore, we will refer to them inter-
changeably.
UNITED STATES v. ENGLE 5
(3) that either the defendant knew or had reason to know that
the visual depiction will be transported in interstate com-
merce, or that the visual depiction has actually been trans-
ported in interstate commerce. United States v. Malloy, 568
F.3d 166, 169 (4th Cir. 2009), cert. denied, 130 S.Ct. 1736(2010). Section 2251(a) "plainly makes illegal the inducement
of children into sexual conduct for the purpose of creating
visual depictions of that conduct and transportation of the
depictions across state lines." United States v. Bell, 5 F.3d 64,
68 (4th Cir. 1993) (citation and internal quotation marks omit-
ted).
Sexual abuse of minors "can be accomplished by several
means and is often carried out through a period of grooming."
United States v. Chambers, 642 F.3d 588, 593 (7th Cir. 2011).
"Grooming refers to deliberate actions taken by a defendant
to expose a child to sexual material; the ultimate goal of
grooming is the formation of an emotional connection with
the child and a reduction of the child’s inhibitions in order to
prepare the child for sexual activity." Id. Sections 2422(b) and
2251(a) "target[ ] the sexual grooming of minors as well as
the actual sexual exploitation of them." United States v. Berg,
640 F.3d 239, 252 (7th Cir. 2011).
II
With this background, we first consider Engle’s argument
that the district court erred by denying his pretrial motion to
dismiss Count 1 based on improper venue. We review this
issue de novo. United States v. Wilson, 262 F.3d 305, 320 (4th
Cir. 2001).
A.
A federal criminal defendant is entitled to be tried in the
State and district where the alleged crime was committed. See
U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI; Fed. R.
Crim. P. 18. The federal venue requirement protects criminal
6 UNITED STATES v. ENGLE
defendants "from the inconvenience and prejudice of prosecu-
tion in a far-flung district bearing no connection to their
offenses." United States v. Smith, 452 F.3d 323, 334 (4th Cir.
2006).
Venue "is not a substantive element of a crime," United
States v. Griley, 814 F.2d 967, 973 (4th Cir. 1987), but
instead "is similar in nature to a jurisdictional element,"
United States v. Johnson, 510 F.3d 521, 527 (4th Cir. 2007).
We have recognized that venue is a question of fact in which
the burden of proof rests with the government, but unlike
other facts in the government’s case, it may be proven by
mere preponderance of the evidence. United States v. Burns,
990 F.2d 1426, 1436 (4th Cir. 1993). Moreover, circumstan-
tial evidence can be sufficient to establish proper venue. Gri-
ley, 814 F.2d at 973.
Venue is "ordinarily decided by the jury," United States v.
Acosta-Gallardo, 656 F.3d 1109, 1118 (10th Cir.), cert.
denied, 132 S.Ct. 540 (2011), but a defendant must challenge
venue before trial if the asserted venue defect is apparent on
the face of the indictment, United States v. Collins, 372 F.3d
629, 633 (4th Cir. 2004). Despite its constitutional dimension,
proper venue may be waived by the defendant, United States
v. Ebersole, 411 F.3d 517, 525 (4th Cir. 2005), and a failure
to challenge a facially defective venue allegation constitutes
a waiver, Collins, 372 F.3d at 633. However, "if an indictment
properly alleges venue, but the proof at trial fails to support
the venue allegation, an objection to venue can be raised at
the close of the evidence." Id. If the defendant raises such an
objection, the district court must instruct the jury if "there is
a genuine issue of material fact with regard to proper venue."
United States v. Perez, 280 F.3d 318, 334 (3rd Cir. 2002); see
also Ebersole, 411 F.3d at 526 n.10 ("Submitting the venue
question to the jury is an appropriate procedure for resolving
a factual dispute relating to venue.").
Although the venue rule "seems straightforward, the place
of the crime can be difficult to determine." United States v.
UNITED STATES v. ENGLE 7
Bowens, 224 F.3d 302, 308 (4th Cir. 2000). When, as here, a
defendant is charged with multiple criminal counts, venue
must lie as to each count. Id. "If Congress does not explicitly
provide for venue when it enacts a criminal statute, venue is
to be determined from the nature of the crime alleged and the
location of the act or acts constituting it." Ebersole, 411 F.3d
at 524 (citation and quotation marks omitted). "This assess-
ment must focus on the ‘essential conduct elements’ of the
charged offense," and is also "guided by the general venue
provisions for federal criminal offenses, set forth in 18 U.S.C.
§§ 3231–3244." Id. (citation omitted). Venue for a particular
crime may be appropriate in more than one district, Bowens,
224 F.3d at 309, and "[w]here venue requirements are met,
the prosecution may proceed in that district, notwithstanding
the possibility that the gravamen of the wrongdoing took
place elsewhere," Smith, 452 F.3d at 334. As we have
explained, "[s]uch a rule is both even-handed and practical:
there is no unfairness in prosecuting a defendant in a district
in which he has committed a crime, and there are good rea-
sons to avoid an indeterminate inquiry into the relative seri-
ousness of multi-district misconduct." Id.Of the aforementioned general venue provisions for federal
criminal offenses, 18 U.S.C. § 3237(a) is pertinent to this
case. Section 3237(a) is divided into two paragraphs. The first
paragraph states, in relevant part, that any offense "begun in
one district and completed in another, or committed in more
than one district," may be prosecuted "in any district in which
such offense was begun, continued, or completed." The sec-
ond paragraph states, in relevant part, that any offense involv-
ing transportation in interstate commerce is a "continuing
offense" and may be prosecuted "in any district from,
through, or into which such commerce . . . moves."
B.
In Count 1, the government charged Engle with sexual
exploitation of A.M. in violation of § 2251(a), which does not
8 UNITED STATES v. ENGLE
contain a specific venue provision. The government alleged
that on or about April 25-27, 2008, "in the Eastern District of
Virginia and elsewhere," Engle "did knowingly use, persuade,
induce, and entice [A.M.] to engage in sexually explicit con-
duct for the purpose of producing any visual depiction of such
conduct" when he "knew and had reason to know that such
visual depiction would be, and later was, transported by him
in interstate commerce into the Eastern District of Virginia"
between April 27 and October 24, 2008, and "which visual
depiction was produced using materials that had been mailed,
shipped, and transported in interstate and foreign commerce."
J.A. 16.
Pursuant to Federal Rule of Criminal Procedure 12, Engle
moved before trial to dismiss Count 1, arguing that "[n]either
the indictment, nor discovery materials received from the
government, allege that any specific conduct prohibited by . . .
§ 2251(a), occurred in the Eastern District of Virginia." J.A.
33. Continuing, Engle asserted that "[a]ccording to the dis-
covery materials" supplied by the government, the offense
charged in Count 1 is based on his alleged conduct that
occurred in Pennsylvania on or about April 25-27, 2008, and
"[t]here appears to be no evidence of conduct within the East-
ern District of Virginia, that would constitute a violation of
. . . § 2251(a)." J.A. 34. Engle concluded by stating: "So far,
the government has not shown by a preponderance of the evi-
dence that venue is proper in the Eastern District of Virginia."
J.A. 35.
The government argued in opposition that venue was
proper because the indictment alleges that Engle transported
the video from Pennsylvania to the Eastern District of Vir-
ginia, and his offense only became complete when he entered
Virginia. For support, the government cited the second para-
graph of § 3237(a), which (as noted) provides in part that any
offense involving transportation in interstate commerce is a
"continuing offense" that may be prosecuted in any district
into which such commerce moves. The government also
UNITED STATES v. ENGLE 9
pointed to our decision in United States v. Reigle, 228 F.
App’x 353 (4th Cir. 2007), in which we found that venue was
proper in the District of Maryland on two § 2251(a) crimes
where the defendant had created illegal visual depictions in
Pennsylvania that were later downloaded and discovered on
a computer in Maryland.
At a pretrial hearing, Engle informed the district court that
it could decide the motion on the written submissions. The
court then denied the motion, holding that an offense under
§ 2251(a) is a continuing offense under § 3237(a) that can be
prosecuted in any district into which the visual depiction
moves. United States v. Engle, 677 F.Supp.2d 879, 886 (E.D.
Va. 2009). The court noted that its determination is consistent
with other § 2251(a) cases involving venue challenges, and it
rejected Engle’s attempt to distinguish our decision in Reigle.4
Engle did not request that the issue of venue be submitted to
the jury and did not assert in his motion for judgment of
acquittal that the government failed at trial to prove proper
venue.
Relying primarily on our decision in Bowens, Engle now
contends that the district court erred in denying his pretrial
venue motion because § 2251(a) contains only one essential
conduct element which may be considered in determining
venue — i.e., the enticement of a minor to engage in sexually
explicit conduct for the purpose of producing a visual depic-
tion. He asserts that this conduct occurred only in Pennsylva-
nia, and the court therefore improperly considered the
"circumstantial element" of interstate transportation of the
visual depiction in concluding that venue was proper in the
Eastern District of Virginia.
In response, the government argues that the district court
4
Apart from Reigle, the most notable case cited by the court is United
States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009), cert. denied, 130
S.Ct. 1315 (2010), which we discuss below.
10 UNITED STATES v. ENGLE
correctly considered the interstate transportation element in
determining that Count 1 involves a "continuing offense"
under the second paragraph of § 3237(a). Additionally, the
government argues that venue is proper in the Eastern District
of Virginia under the first paragraph of § 3237(a) because the
trial evidence establishes that Engle began the offense of
enticing A.M. to engage in sexually explicit conduct for the
purpose of creating a visual depiction in Virginia when he
communicated with her online and by telephone. The govern-
ment describes his communications with A.M. as "grooming."
Regarding this latter argument, Engle replies that (1) we
should not consider it because the government did not make
it below and (2) the trial evidence does not establish that
Engle began the offense in Virginia.
C.
Notwithstanding the manner in which the parties have
argued the venue issue throughout this case, it appears that the
actual issue presented by Engle’s motion to dismiss (and this
appellate argument) is more limited than they contend. Engle
clearly based his dismissal motion on the pretrial "evidence"
that had thus far been produced. See, e.g., J.A. 35 ("So far, the
government has not shown by a preponderance of the evi-
dence that venue is proper in the Eastern District of Vir-
ginia."). However, because Engle moved under Rule 12 to
dismiss Count 1 before trial, his motion was a challenge to the
sufficiency of the indictment, which is ordinarily limited to
the allegations contained in the indictment. See, e.g., United
States v. Wills, 346 F.3d 476, 488 (4th Cir. 2003) (noting that
"courts lack authority to review the sufficiency of evidence
supporting an indictment").5
5
We may affirm on any ground appearing in the record, including theo-
ries not relied upon by the district court. Scott v. United States, 328 F.3d
132, 137 (4th Cir. 2003). Moreover, we are not bound by the parties’ char-
acterization of the legal principles, Kamen v. Kemper Fin. Servs., Inc., 500
U.S. 90, 99 (1991), and we have recast appellate arguments in the past to
UNITED STATES v. ENGLE 11
A district court may dismiss an indictment under Rule 12
"where there is an infirmity of law in the prosecution; a court
may not dismiss an indictment, however, on a determination
of facts that should have been developed at trial." United
States v. Snipes, 611 F.3d 855, 866 (11th Cir. 2010) (citation
and internal quotation marks omitted); see also United States
v. Jensen, 93 F.3d 667 (9th Cir. 1996) (holding that the dis-
trict court erred by looking beyond the allegations of the
indictment to grant a Rule 12(b) dismissal motion for
improper venue).6 Therefore, to warrant dismissal of Count 1
for improper venue, Engle was required to demonstrate that
the allegations therein, even if true, would not establish
venue. See United States v. Thomas, 367 F.3d 194, 197 (4th
Cir. 2004).
As we have noted, the government alleged (in part) that on
or about April 25-27, 2008, "in the Eastern District of Vir-
ginia and elsewhere," Engle knowingly enticed A.M. to
engage in sexually explicit conduct with him for the purpose
of producing a visual depiction of that conduct. Based on
these allegations, which clearly designate "the Eastern District
of Virginia and elsewhere" as the location of Engle’s illegal
acts, his pretrial motion to dismiss Count 1 on venue grounds
should have been denied. See generally United States v. Ren-
delman, 641 F.3d 36, 44 (4th Cir. 2011) (noting that "an
indictment is legally sufficient (1) if it alleges the essential
elements of the offense, that is, it fairly informs the accused
of what he is to defend; and (2) if the allegations will enable
more accurately reflect their nature, see, e.g., United States v. Thomas, 367
F.3d 194, 197 (4th Cir. 2004) ("In light of the nature of Thomas’ argu-
ment, we are inclined to treat it as a challenge to the adequacy of the fac-
tual basis supporting his plea even though he has not explicitly framed it
as such.").
6
Citing Jensen, we stated in United States v. Forrest, 1999 WL 436743(4th Cir. 1999): "When the motion to dismiss for improper venue is a pre-
trial motion, only the indictment may be considered. Evidence beyond the
face of the indictment should not be considered."
12 UNITED STATES v. ENGLE
the accused to plead an acquittal or conviction to bar a future
prosecution for the same offense.").7
D.
We do not rest our decision solely on the foregoing ratio-
nale. Instead, even if we review the parties’ actual arguments,
we conclude that venue was proper in the Eastern District of
Virginia under both paragraphs of § 3237(a).
1.
First, as to the legal issue decided by the district court, we
agree with the court that venue is proper in the Eastern Dis-
trict of Virginia under the second paragraph of § 3237(a)
because the charge against Engle is a "continuing offense." In
so holding, we find the Eleventh Circuit’s decision in Kapor-
delis to be persuasive.
In Kapordelis, the defendant created sexually explicit pho-
tographs of a child while he was in Greece and South Caro-
lina, and the photographs were later discovered in his
possession in Georgia. The defendant moved to dismiss the
§ 2251(a) counts against him, arguing that venue was
improper in Georgia because the production of the images did
not occur there. The district court denied the motion, and the
Eleventh Circuit affirmed, explaining:
Section 2251(a) includes among its required ele-
ments . . . (1) that the defendant must know or have
reason to know that "such visual depiction will be
7
A district court "may consider a pretrial motion to dismiss an indict-
ment where the government does not dispute the ability of the court to
reach the motion and proffers, stipulates, or otherwise does not dispute the
pertinent facts." United States v. Weaver, 659 F.3d 353, 356 n.* (4th Cir.
2011). Weaver is inapplicable here because the government did not proffer
or stipulate to the pertinent facts below, and as we later explain, some of
the relevant venue facts were developed only at trial.
UNITED STATES v. ENGLE 13
transported in interstate or foreign commerce or
mailed," (2) that the "visual depiction was produced
using materials that have been mailed, shipped, or
transported in interstate or foreign commerce," or (3)
that the "visual depiction has actually been trans-
ported in interstate or foreign commerce or mailed."
Count 1 alleges that the digital photographs were
transported from Greece to Georgia and Count 3
alleges that the digital photographs were transported
from South Carolina to Georgia and created using a
camera that had been "mailed, transported and
shipped in interstate and foreign commerce."
While neither the transportation of an image alleg-
edly produced in violation of § 2251(a) from another
jurisdiction nor the possession of such an image in
the Northern District of Georgia changes the location
of the "use" or "production" elements from Greece
or South Carolina, as Defendant argues, § 2251(a)
ties the punishment for the "use" of a minor in and
"production" of visual depictions of sexually explicit
conduct to the transport of the visual depictions or
the means of producing those visual depictions in
interstate or foreign commerce. Thus, under 18
U.S.C. § 3237, the violation of § 2251(a) as alleged
in Counts 1 and 3 is a "continuing offense." Venue
in the Northern District of Georgia into which the
images (and the camera, in the case of Count 3)
moved, was appropriate, and the decision of the dis-
trict court shall be affirmed.
569 F.3d at 1307-08. Kapordelis is indistinguishable from this
case, and we find its reasoning to be applicable here.
We disagree with Engle that Bowens compels a different
result. The venue issue in Bowens arose from a prosecution in
the Eastern District of Virginia under 18 U.S.C. § 1071 for
illegally harboring a fugitive from arrest. In prosecutions
14 UNITED STATES v. ENGLE
under § 1071, the issuance of a federal arrest warrant is an
essential element. Bowens, 224 F.3d at 309. The federal arrest
warrants in that case were issued in Virginia, but the defen-
dant’s only acts of harboring the fugitive occurred in South
Carolina. Based on these facts, the defendant requested a jury
instruction on venue, but the district court denied the request,
ruling that the issuance of the arrest warrants in Virginia was
sufficient for venue to lie there. Because we held that the only
essential conduct element of the § 1071 prosecution was the
act of harboring the fugitive, we concluded that venue was
improper in Virginia. 224 F.3d at 311.
Bowens did not involve § 3237(a), which governs venue for
interstate transportation cases such as this one.8 Moreover, in
the context of prosecutions under §§ 1071 and 2251(a) — and
the conduct which Congress sought to prevent — the act of
transporting child pornography across state lines is fundamen-
tally different than the location of the issuance of an arrest
warrant, which is nothing more than a happenstance fact. See,
e.g., United States v. Schaffner, 258 F.3d 675, 683 (7th Cir.
2001) ("The actual movement of the photograph across state
lines directly implicates interstate commerce and the legiti-
mate congressional concern that this evil not be spread or
encouraged through the use of the channels of interstate com-
merce.").
8
An analogous case is United States v. Melia, 741 F.2d 70 (4th Cir.
1984) (per curiam). There, the defendant was convicted in the Eastern Dis-
trict of North Carolina under 18 U.S.C. § 2315 for receiving goods which
had crossed state lines after being stolen. The goods were stolen in North
Carolina, but because the defendant’s conduct occurred only in Connecti-
cut, where the goods were delivered, he argued improper venue, "insist[-
ing] that the receipt of stolen goods is a single act and the crime must be
prosecuted where the receipt occurs. . . ." 741 F.2d at 72. In essence, he
argued that the essential conduct element of the crime occurred in Con-
necticut, and the circumstance element of interstate transportation was
irrelevant. We rejected this argument, finding that § 3237(a) "was enacted
. . . to deal precisely with this interstate ‘process of wrongdoing.’" Id.
UNITED STATES v. ENGLE 15
2.
Second, as a factual matter, we conclude that venue is also
proper under the first paragraph of § 3237(a), which provides
that any offense "begun in one district and completed in
another, or committed in more than one district," may be
prosecuted "in any district in which such offense was begun,
continued, or completed." As noted, Count 1 charges (in part)
that Engle knowingly enticed A.M. to engage in sexually
explicit conduct for the purpose of making a visual depiction.
Regardless of the fact that Engle ultimately created the video
in Pennsylvania, the charged crime of enticement — i.e.,
Engle’s effort to persuade A.M. — clearly began before he
recorded the sexual activity with A.M. See United States v.
Buculei, 262 F.3d 322, 328 (4th Cir. 2001) (holding that
enticement under § 2251(a) can occur even if the defendant is
unsuccessful in his attempt to produce the visual depiction).
The question, therefore, is whether the government pre-
sented sufficient direct or circumstantial evidence at trial to
prove by a preponderance of the evidence that Engle commit-
ted an act in the Eastern District of Virginia that enticed A.M.
to engage in sexually explicit conduct for the purpose of mak-
ing the video-recording. To answer this question, we view the
evidence in the light most favorable to the government,
Burns, 990 F.2d at 1437, and we recognize that the jury may
infer intent from circumstantial evidence, United States v.
Lowder, 492 F.2d 953, 957 (4th Cir. 1974).
At trial, the government presented evidence that in April
2008, Engle met A.M. in an internet chatroom. During their
initial conversations, A.M. informed the 30-year-old Engle
that she was only 17. Nonetheless, Engle’s conversations
quickly became sexual in nature, and he sent her "[s]exual
pictures where he was naked." J.A. 597. Engle eventually
traveled to Pennsylvania to see A.M. on April 16, 2008, and
he picked her up at her high school and took her to a motel.
16 UNITED STATES v. ENGLE
There, Engle and A.M. talked, drank alcohol, and kissed, but
they did not engage in sexual intercourse.
Nine days later, Engle returned to see A.M. Engle again
picked A.M. up from high school, and this time he rented a
motel "honeymoon suite" that included a hot tub. Engle pro-
vided alcohol and gifts to A.M., and after she became intoxi-
cated, he recorded the two of them engaging in sexual
intercourse. Engle brought the recording back to Virginia.
After this incident, A.M. refused Engle’s request to meet
again.
Unquestionably, much of the pre-recording activity
occurred in Pennsylvania. Moreover, there is no evidence that
Engle directly informed A.M. from Virginia of his intent or
desire to videotape or photograph her engaging in sexually
explicit conduct. However, viewing the evidence presented at
trial in the light most favorable to the government, we believe
that a jury could reasonably find by a preponderance of the
evidence that Engle’s sexually themed communications with
A.M., and especially his sending naked pictures of himself to
her, were part of his effort to "groom" her for that purpose,
which is sufficient to establish enticement under § 2251(a).9
See generally United States v. Dorvee, 616 F.3d 174, 180
(2nd Cir. 2010) (holding that the district court’s factual find-
ing for sentencing purposes that the defendant sent images as
part of a grooming process to persuade a minor to engage in
9
A defendant can violate § 2251(a) in multiple ways, and the evidence
is sufficient here to establish that Engle violated the statute in at least two
ways: "using" A.M. and "enticing" A.M. See United States v. McCloud,
590 F.3d 560, 566 (8th Cir. 2009), cert. denied, 131 S.Ct. 72 (2010) ("A
defendant ‘uses’ a minor for purposes of § 2251(a) if he photographs the
minor engaging in sexually explicit conduct to create a visual depiction of
such conduct."); Harms v. United States, 272 F.2d 478, 480 (4th Cir.
1959) (evidence that a female traveled across state lines to engage in pros-
titution in response to the defendant’s call asking her to do so is sufficient
to sustain the finding that the defendant "induced or persuaded" the female
to make the trip in violation of § 2422).
UNITED STATES v. ENGLE 17
the type of sexual conduct depicted in the images was not
clearly erroneous); Lee, 603 F.3d at 915 ("Much of Lee’s con-
duct — especially his sending graphic photographs to the girls
. . . — also supports a finding that he groomed the girls in an
effort to facilitate a future sexual encounter."); United States
v. Brand, 467 F.3d 179, 203 (2nd Cir. 2006) (holding that the
defendant’s "sexual advances and grooming behavior provide
additional evidence in support of the jury’s finding that [he]
attempted to entice a minor"). Because Engle conducted at
least some of this activity from the Eastern District of Vir-
ginia, his claim of improper venue is without merit.10
III
Having disposed of Engle’s challenge to venue on Count 1,
we next turn to his contention that the evidence is insufficient
to support his convictions on Counts 6-8. We review his chal-
lenge to the sufficiency of the evidence de novo, United States
v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005), and we must sus-
tain the verdict if there is substantial evidence, viewed in the
light most favorable to the government, to support it, Burks v.
United States, 437 U.S. 1, 17 (1978). Substantial evidence is
evidence that a reasonable finder of fact could accept as ade-
quate and sufficient to support a conclusion of guilt beyond
a reasonable doubt. Alerre, 430 F.3d at 693. A defendant
bringing a sufficiency challenge "must overcome a heavy bur-
den," United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir.
1995), and reversal for insufficiency must "be confined to
10
We reject Engle’s contention that we should not consider this argu-
ment because it was not raised below. Engle did not challenge venue at
trial, so there was no reason for the government to address the issue at that
time. Notably, although Engle now chides the government for not raising
venue at trial, the government had no obligation to do so. See Reply Brief
of the Appellant, at 7 n.1 ("Though it was obvious that venue would be an
issue on appeal, the government did not request a special verdict on this
issue, so there is no way of knowing which [§ 2251(a)] jurisdictional basis
the jury found.").
18 UNITED STATES v. ENGLE
cases where the prosecution’s failure is clear," Burks, 437
U.S. at 17.
A.
Pursuant to Counts 6-8, Engle was convicted under
§ 2422(b) for attempted enticement of K.M. Section 2422(b)
"was designed to protect children from the act of solicitation
itself," United States v. Hughes, 632 F.3d 956, 961 (6th Cir.
2011), cert. denied, 131 S.Ct. 2975 (2011), and it "criminal-
izes an intentional attempt to achieve a mental state — a
minor’s assent — regardless of the accused’s intentions [con-
cerning] the actual consummation of sexual activities with the
minor," United States v. Berk, 652 F.3d 132, 140 (1st Cir.
2011) (emphasis in original) (citation and internal quotation
marks omitted). Although "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 [in § 2422(b)] to criminalize persuasion and the
attempt to persuade, not the performance of the sexual acts
themselves." United States v. Bailey, 228 F.3d 637, 639 (6th
Cir. 2000).
"An attempt to commit a crime, which is recognized as a
crime distinct from the crime intended by the attempt, pun-
ishes conduct that puts in motion events that would, from the
defendant’s point of view, result in the commission of a crime
but for some intervening circumstance." United States v.
Pratt, 351 F.3d 131, 135 (4th Cir. 2003). The "mere intent to
violate a federal criminal statute is not punishable as an
attempt unless it is also accompanied by significant conduct."
United States v. Resendiz-Ponce, 549 U.S. 102, 107 (2007).
Therefore, in order to convict a defendant of attempt, the gov-
ernment must prove beyond a reasonable doubt, that (1) he
had culpable intent to commit the crime and (2) he took a sub-
stantial step towards completion of the crime that strongly
corroborates that intent. United States v. Neal, 78 F.3d 901,
UNITED STATES v. ENGLE 19
906 (4th Cir. 1996). The government may meet its burden of
proof by using direct or circumstantial evidence. United
States v. Figueroa, 976 F.2d 1446, 1459 (1st Cir. 1992). Fac-
tual impossibility is not a defense to a charge of attempt.
United States v. Williams, 553 U.S. 285, 300 (2008).
B.
The evidence relating to Counts 6-8 tends to establish that
Engle met 13-year-old K.M. over the internet in early 2008.
During that summer, Engle continued to communicate with
K.M., expressing his love for her and his desire to engage in
sexual activity with her. Engle and K.M. referred to each
other as "Superman" and "Supergirl," and as "Bonnie" and
"Clyde."
K.M. came from a troubled family environment, and Engle
sought to exploit this fact in communicating with her. For
example, in a series of mid-August text messages, Engle
promised K.M. that he would always keep her safe and take
care of her if she came to live with him. In late August, Engle
drove from Virginia to South Carolina, where he met K.M.
Engle returned to Virginia the next day.
A few days later, Engle returned to South Carolina at
K.M.’s request and took her to Virginia Beach, Virginia,
where they stayed with some of Engle’s acquaintances for
approximately two weeks. During this time, K.M.’s father
reported her missing. Jim Perry, an investigator with the
Greenville County, South Carolina, Sheriff’s Office, found
K.M.’s cellphone and discovered some of the messages that
Engle had sent her. Investigator Perry contacted Engle con-
cerning K.M.’s whereabouts, but Engle denied knowing
where she was. When asked for his address for a follow-up
interview, Engle provided a false address.
Engle later drove K.M. to his mother’s home in North Car-
olina. In mid-September 2008, Sergeant Randy Hathaway of
20 UNITED STATES v. ENGLE
the Gates County, North Carolina, Sheriff’s Department drove
to Engle’s mother’s home to search for K.M. Sergeant
Hathaway found both K.M. and Engle inside. Sergeant
Hathaway removed K.M. from the location, but he did not
arrest Engle. While they were together, Engle had engaged in
sexual relations with K.M.
After recovering K.M., the Gates County Sheriff’s Office
obtained a warrant for Engle’s arrest, but Engle left the area
before he could be arrested. Upon learning that K.M. had
been with Engle, officials in South Carolina charged him with
kidnapping. Engle was arrested on October 24, 2008, in Vir-
ginia Beach and was charged with having carnal knowledge
of K.M. During a search of his vehicle incident to the arrest,
law enforcement officers found the sexually explicit video-
recording of Engle and A.M.
Shortly after his arrest, and while he was incarcerated in
Virginia, Engle began contacting K.M. and her mother, C.M.,
by mail and by telephone. Generally, in these communica-
tions, Engle attempted to obtain false statements from K.M.
and C.M., asking them to say, for example, that he had done
nothing illegal with K.M., that K.M. was never in Virginia,
that K.M. had parental permission to be with him, and that
Investigator Perry had forced K.M. to make a false statement.
Eventually, Engle convinced K.M. to write and sign two false
statements indicating that South Carolina investigators forced
her to sign a false statement, that she never had sexual rela-
tions with Engle, and that she had never been to Virginia
Beach. Engle’s mother provided copies of both statements to
the FBI. Engle also expressed his love for K.M., and his
desire to reunite with her and to engage in sexual activity with
her. As he told her in one telephone call: "[A]ll my energy is
going to [getting out] and getting back with you." J.A. 015B-
007.
Count 6 is based on a lengthy letter Engle sent to K.M. on
UNITED STATES v. ENGLE 21
December 22, 2008.11 This letter begins with the salutation
"Dear Supergirl" and contains several drawings, including a
heart with "Bonnie & Clyde" written inside. It is also replete
with Engle’s professions of love for K.M., and his desire to
be with her soon and to marry her. To that end, Engle dis-
cussed actions that K.M. needed to take to ensure that the Vir-
ginia and South Carolina charges against him would be
dropped before an upcoming hearing. In one part of the letter,
Engle told K.M. that if the charges were dropped by the hear-
ing:
I will be released and go free and be able to just
come down right away and be back together with
you. All I want is to be back with you as soon as
possible, I love you so much. I miss holding, kissing,
loving you, just being with you.
J.A. 013A-007.
Engle also made several overtly sexual statements in this
letter. For example, Engle wrote:
***
[J]ust so you know, I haven’t done anything since us
together, none of your favorite thing you loved to lis-
ten to me do, nothing. Unexploded for what, 3
months now. So yeah, when I’m back with you
know, its gonna be like, just wow, incredible!! . . .
I think you know what I mean though.
11
Because of the length of the communications underlying Counts 6-8,
we do not attempt to provide a complete description of them.
22 UNITED STATES v. ENGLE
***
I want to Kiss and Lick you all over!
J.A. 013A-005, -008, -010.
Count 7 is based on two telephone calls that Engle made on
December 29, 2008. During the first call, Engle spoke with
C.M., who warned him that when he got to South Carolina he
should not expect sex for a month so that K.M. could start
birth control. J.A. 016B-006. After this call ended, Engle cal-
led and spoke with K.M, telling her (among other things) that
he was going to be released from jail soon, and that he would
not be able to wait a month to have sex with her:
Engle: I love my girl so it looks like, I’m hoping,
I’m gonna be back with you pretty soon. Alright?
K.M.: Yeah.
Engle: Yeah and I guess your um, something about
BC for a month or something saying. Did you hear
me?
K.M.: Huh?
Engle: She was saying something about BC for a
month.
K.M.: Yeah.
Engle: Yeah [laugh] you gonna be able to do that?
K.M.: mm
Engle: Huh? [laugh]
K.M.: Aaah.
UNITED STATES v. ENGLE 23
Engle: [laugh] I don’t [think] I can for real [laugh].
K.M.: No.
Engle: Just keep it between us.
K.M.: Yeah.
Engle: You know what I mean. Cuz like I don’t even
think I’d make it [laugh] I wouldn’t even make it out
of the parking lot [laugh]. You know what I mean?
K.M.: Yeah.
Engle: You feeling that too? Huh.
***
K.M.: Yeah.
Engle: [laugh] You’re a mess. Nobody will know
except me and you, right?
K.M.: A huh.
Engle: I love you.
K.M.: You too.
***
Engle: Don’t worry about the waiting a month thing
like that okay?
K.M.: Okay.
J.A. 016B-011 through -013.
24 UNITED STATES v. ENGLE
Engle also discussed with K.M. how long it had been since
they had had sex, and he told her that when they got back
together "[i]t’s gonna be like the first time." J.A. 016B-016.
Additionally, Engle encouraged K.M. to masturbate while he
listened over the phone, commenting: "Isn’t it better with me
doing that?" J.A. 016B-013 through -015.
Count 8 is based on a lengthy letter that Engle sent to K.M.
on December 30, 2008. Like the December 22 letter, this let-
ter begins with the salutation "Dear Supergirl," and it also
contains numerous professions of Engle’s love for K.M. (both
in writing and in drawings) and his belief that they will be
together soon. Among other things, Engle referred to his pro-
spective living arrangements in South Carolina, writing: "So
you cleared out a lot of stuff in the room for my bed. Yeah,
I’m not seeing me sleeping alone when I’m there. You won’t
let that happen." J.A. 014A-007. Engle told K.M. that he
missed "being up with you all night, holding, kissing, and lov-
ing you." J.A. 014A-008.
Engle also made overtly sexual statements in this letter. For
example, he wrote:
I’m trying really hard not to explode wink wink until
I’m out of here and back with you. Its driving me
nuts, but i’m gonna do it, be able to hold out until
I’m back with you. Cause that moment is going to be
like, O.M.F.G. incredible. You know that, and I
know you’re like waiting, wishing, and wanting that
J.A. 014A-009. In another passage, Engle referred to K.M.
masturbating while she was on the phone with him:
UNITED STATES v. ENGLE 25
J.A. 014A-004.
C.
Engle’s argument regarding the sufficiency of the evidence
is limited to one element of the charged crimes. He contends
that his communications with K.M. were "mere expressions
of affection and sexual desire," Brief of Appellant, at 43, and
that because he was incarcerated with no realistic probability
of being released when he communicated with K.M., the evi-
dence is insufficient to establish that he took a substantial step
towards enticing her to engage in illegal sexual activity. We
disagree.
For purposes of the crime of attempt, a substantial step is
a direct act in a course of conduct planned to culminate in
commission of a crime that is strongly corroborative of the
defendant’s criminal purpose. Pratt, 351 F.3d at 135. It "is
more than mere preparation but less . . . than completion of
the crime." Neal, 78 F.3d at 906. "Whether conduct represents
a substantial step depends on the ‘surrounding factual circum-
stances;’" and the determination is "necessarily fact specific."
Id. In determining whether a defendant has taken a substantial
step, "the focus is on the actions already taken to complete the
underlying crime, not on the acts that remain uncompleted,"
26 UNITED STATES v. ENGLE
United States v. Sanchez, 615 F.3d 836, 844 (7th Cir. 2010)
(emphasis in original), and "a court must assess how probable
it would have been that the crime would have been committed
— at least as perceived by the defendant — had intervening
circumstances not occurred," Pratt, 351 F.3d at 136.
Although "words and discussions would usually be consid-
ered preparations for most crimes, a specific discussion could
be so final in nature that it left little doubt that a crime was
intended and would be committed." Id. This rule has particu-
lar force in prosecutions under § 2422(b) because "the very
nature of the underlying offense — persuading, inducing or
enticing engagement in unlawful sexual activity — necessar-
ily contemplates oral or written communications as the princi-
pal if not the exclusive means of committing the offense. . . ."
United States v. Rothenberg, 610 F.3d 621, 627 (11th Cir.
2010). Therefore, "an individual evaluation by the fact finder
of the defendant’s intent as disclosed by his words or speech
is necessary in [almost] every prosecution under § 2422(b)."
Id.
Based on the foregoing authorities, we easily conclude that
substantial evidence exists to support Engle’s convictions on
Counts 6-8. In the communications that are the subject of
these counts, Engle communicated with K.M. and C.M. in
specific terms regarding his expected release from jail, his
immediate plan to reunite with K.M., and his desired living
arrangement in their house. Moreover, Engle referenced his
past sexual activity with K.M. in graphic terms, and he
unequivocally stated his intention to resume sexual activity
with her as soon as he was released. Engle’s intentions are
corroborated by his discussion with C.M. and K.M. as to
whether he would have to refrain from engaging in sexual
activity with K.M. until she was on birth control. Addition-
ally, Engle attempted to procure false testimony from K.M.
and others in an effort to be released, and he persuaded K.M.
to file two false statements on his behalf.
UNITED STATES v. ENGLE 27
Taken as a whole, this evidence is more than sufficient to
constitute a substantial step for the crime of attempted entice-
ment under § 2422(b). See, e.g., United States v. Goetzke, 494
F.3d 1231, 1237 (9th Cir. 2007) ("[W]hen a defendant initi-
ates conversation with a minor, describes the sexual acts that
he would like to perform on the minor, and proposes a rendez-
vous to perform those acts, he has crossed the line toward
[enticing] a minor to engage in unlawful sexual activity.");
see also United States v. Broussard, ___ F.3d ___, ___ (5th
Cir. 2012) (2012 WL 309102) (noting that "the prohibited act
of persuasion can occur over a distance, as the statute
expressly contemplates, and logic would appear to dictate that
having discussions with [minors] about meeting to have sex
is a substantial step toward persuading them to have sex").12
IV
Finally, we consider Engle’s argument that the district
court erred by denying him the right of a meaningful allocu-
tion before pronouncing sentence. Federal Rule of Criminal
Procedure 32(i)(4)(A)(ii) requires that before imposing sen-
tence the district court must "address the defendant personally
in order to permit the defendant to speak or present any infor-
mation to mitigate the sentence."
Engle acknowledges that his failure to object at sentencing
subjects this issue to plain-error review. See United States v.
Muhammad, 478 F.3d 247, 249 (4th Cir. 2007) (applying
plain-error review on denial of allocution claim). Under Rule
52(b) of the Federal Rules of Criminal Procedure, "[a] plain
error that affects substantial rights may be considered even
12
That Engle was incarcerated does not change the result. He was not
convicted of attempting to engage in sexual relations with K.M. Rather,
he was convicted of attempted enticement, "for which physical proximity
can be probative but is not required." Goetzke, 494 F.3d at 1236 (rejecting
argument that the defendant could not have violated § 2422(b) because he
was not in a position to have physical contact with the minor).
28 UNITED STATES v. ENGLE
though it was not brought to the [district] court’s attention."
Interpreting Rule 52(b), the Supreme Court has instructed:
[A]n appellate court may, in its discretion, correct an
error not raised at trial only where the appellant
demonstrates that (1) there is an error; (2) the error
is clear or obvious, rather than subject to reasonable
dispute; (3) the error affected the appellant’s sub-
stantial rights, which in the ordinary case means it
affected the outcome of the district court proceed-
ings; and (4) the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.
United States v. Marcus, ___ U.S. ___, ___, 130 S.Ct. 2159,
2164 (2010) (internal punctuation and citation omitted).
"[T]he burden of establishing entitlement to relief for plain
error is on the defendant claiming it," United States v. Domin-
guez Benitez, 542 U.S. 74, 82 (2004), and "[m]eeting all four
prongs is difficult, as it should be," Puckett v. United States,
556 U.S. 129, 129 S.Ct. 1423, 1429 (2009) (internal punctua-
tion and citation omitted). We conclude that Engle has failed
to establish entitlement to plain-error relief.
At the beginning of the sentencing hearing, the district
court informed Engle that he had "a right to present a sworn
or an unsworn statement before sentence is imposed." J.A.
951. During the hearing, the court heard testimony from sev-
eral witnesses, reviewed evidence presented by the parties,
and resolved numerous factual and legal objections to the pre-
sentence report, including sustaining three of Engle’s objec-
tions. After calculating the advisory sentencing guidelines
range to be 262-327 months, the court denied Engle’s motion
for a downward variance and granted the government’s
motion for an upward variance. In doing so, the court
explained:
This sentence guideline range may have been ade-
quate if, one, we didn’t have the prior record that this
UNITED STATES v. ENGLE 29
defendant has, and, two, if we didn’t have the ques-
tion of protecting the public from further crimes this
defendant might commit because of his propensity to
desire what he describes as a — and I quote — "re-
venge."
***
The government indicates that if we go up three
points we’ll get to a sentence of 360 years to life.
Then the government says, okay, they want 480
months. The defendant will probably be, taking time
off for good behavior, close to 70 by the time he
would get out, at 480 months. I think that 480
months will reasonably protect society in this case
from further crimes this defendant might commit. I
don’t think anything less would do it. I just don’t. I
don’t believe it, and that’s why I would arrive at that
which I think would be a reasonable sentence under
the circumstances.
J.A. 1085-86.13
Immediately thereafter, the court afforded Engle the oppor-
tunity "to make a sworn or an unsworn statement before sen-
tence is imposed." J.A. 1087. Engle accepted the judge’s offer
and briefly addressed the court, asserting that he wanted men-
tal health treatment and that he had made "some bad mistakes,
some bad decisions" but he was "not a bad person." J.A.
1087-88. Engle also apologized for some of his actions and
asked the court to give him "a chance." J.A. 1089. Following
Engle’s statement, the court announced the sentence. Subse-
13
In addition to the conduct for which he was convicted, Engle made a
number of threatening phone calls regarding law enforcement officers,
government prosecutors, and their family members while he was incarcer-
ated in Virginia, and he also attempted to arrange to have one witness
killed.
30 UNITED STATES v. ENGLE
quently, the court filed a lengthy Statement of Reasons
explaining the bases for the sentence. In the conclusion para-
graph of the Statement of Reasons, the court summarized its
rationale:
Based on the nature and circumstances of Defen-
dant’s serious offenses, his history of violent crime
and sex offenses, his mental problems, and the fac-
tors set forth in [18 U.S.C.] § 3553(a)(2), the Court
concludes that a sentence of 480 months of impris-
onment and a term of supervised release of life is
sufficient, but not greater than necessary, to satisfy
the purposes set forth in 18 U.S.C. § 3553.
J.A. 1221.
This record makes it abundantly clear that Engle was
afforded the opportunity to address the court before final sen-
tence was imposed, and he in fact utilized that opportunity.
However, Engle argues that when the district court announced
its intention to vary upward to 480 months, it effectively
imposed the sentence, and his opportunity to address the court
thereafter was meaningless. We disagree.
Rule 32 only requires the district court to address the defen-
dant personally and permit him to speak or present any infor-
mation to mitigate the sentence before sentence is imposed;
apart from that requirement, the rule does not create a right of
allocution at any specific point in the sentencing proceeding.
United States v. Aquilla, 976 F.2d 1044, 1054 (7th Cir. 1992).
Moreover, "[w]hen a judge announces a sentence before hear-
ing an allocution, it is fair to assume that such a sentence is
tentative and that the judge will consider the defendant’s
statements before imposing a final sentence." United States v.
Burgos-Andujar, 275 F.3d 23, 30 (1st Cir. 2001); see also
United States v. Boose, 403 F.3d 1016 (8th Cir. 2005) (finding
no Rule 32 error where district court announced a tentative
UNITED STATES v. ENGLE 31
sentence before permitting allocution); United States v.
Laverne, 963 F.2d 235 (9th Cir. 1992) (same).
Here, there is simply nothing improper about the fact that
the district court resolved the parties’ variance requests and
stated that 480 months seemed to be an appropriate sentence
before Engle’s allocution, and there is likewise nothing in the
record to establish that the court did not consider Engle’s
comments before finally imposing sentence. Accordingly, we
believe that Engle has failed to meet his initial plain-error bur-
den of showing a "clear or obvious" error.
V
Based on the foregoing, we affirm the Judgment of Convic-
tion.
AFFIRMED