IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-41182

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JASON CRAIG MONTGOMERY,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:17-CR-84-1

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

A jury convicted Jason Craig Montgomery of one count of attempted 

coercion and enticement of a minor, in violation of 18 U.S.C. § 2422(b). 

Montgomery contends the district court erred by denying his motion to dismiss 

the indictment; denying his motions for judgment of acquittal and new trial;

and not sustaining his objection to an eight-level enhancement pursuant to 

 

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 27, 2018

Lyle W. Cayce

Clerk

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Sentencing Guideline § 2G1.3(b)(5) (“offense involved a minor who had not 

attained the age of 12 years”).

Montgomery was indicted on one count of attempted coercion and 

enticement of a minor, in violation of 18 U.S.C. § 2422(b). He pleaded not guilty

and, about a week prior to trial, moved, pursuant to Federal Rule of Criminal 

Procedure 12(b)(2), to dismiss the indictment, claiming the “undisputed facts” 

showed he did not act with the

intent to transform or overcome the fictitious minor’s will, never 

took a substantial step corroborating his intent to engage in 

conduct designed to persuade, induce, entice or coerce a minor to 

participate in prohibited sexual activity, and never used or 

attempted to use a means of interstate commerce to communicate 

with a person purportedly under 18 to attempt to persuade, induce, 

entice or coerce that minor to participate in prohibited sexual 

activity.

The motion was denied on the grounds the indictment was sufficient on its face 

and factual disputes warranted trial. 

At trial, FBI Special Agent Mullican, with the FBI’s Child Exploitation 

Task Force, testified she began investigating Montgomery when she discovered 

an ad Montgomery posted to the Craigslist website in March 2017, identifying

himself as a “daddy” seeking “a younger girl, 17 to 25, that’s [sic] been looking 

for a fantasy with an older man”. Although the ad did not mention minors, the 

Agent believed it exhibited certain “flags”, including the use of the term 

“daddy” and the reference to a “younger girl”. She responded to this ad, as well 

as an identical one Montgomery posted five days later. 

The Agent adopted the persona of a single mother who was interested in 

“taboo”, meaning “an adult with a child with a willingness to engage in sexual 

activity”, and in “M&D”, meaning sexual relations between a mother and 

daughter. Montgomery asked how old her child was, and the Agent responded 

her (fictitious) daughter was ten. Shortly after, Montgomery asked whether 

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the Agent and her daughter had engaged in sexual activity together. The 

Agent explained to Montgomery she was looking “to watch somebody be 

engaged in sexual activity with [her] child” for purposes of her sexual 

stimulation, and asked Montgomery whether he was only interested in role 

play or whether he sought an encounter with a child. Montgomery stated he 

had only participated in role play before because he did not have a daughter 

and he had no sexual experience with children. 

Over the course of about two weeks in April 2017, Montgomery and the 

Agent continued to chat using Kik messenger. The Agent testified she 

sometimes disengaged and offered Montgomery several opportunities to leave 

the conversation. She also asked him how he knew he was interested in sex 

with her ten-year-old if he had no experience, and Montgomery responded that 

he “like[d] younger” and knew what he wanted. 

The Agent repeatedly reminded Montgomery she was not planning to 

participate in any sexual activity; she was solely interested in watching 

someone have sex with her daughter; and she was interested in more than just 

role play. Nevertheless, Montgomery continued to chat with the Agent; stated 

he found the idea of the Agent’s having sex with her daughter to be sexually 

stimulating; and described how he would engage in sexual contact with the 

child. Montgomery also expressed knowledge that his conduct was illegal; and 

he offered the Agent advice about avoiding legal repercussions for their actions, 

including drugging the child to maintain a level of secrecy. 

Montgomery and the Agent eventually made plans to meet in person 

with her daughter present. They discussed the items Montgomery would bring 

to their meeting, including sleeping pills and allergy medicine to drug the 

daughter; a trophy Montgomery won in a motorcycle race; alcohol; flash drives 

for the Agent to save pornographic images of her daughter; and condoms. 

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On the agreed-upon day, Montgomery arrived at the designated meeting 

place, purportedly the Agent’s apartment complex, and was arrested. 

Montgomery had a sleeping pill and an allergy pill in his pockets, and condoms, 

beer, two flash drives, and a trophy in his vehicle at the time of his arrest. 

After the Government rested its case, Montgomery moved for judgment 

of acquittal, again contending he did not act “with the intent to transform or 

overcome the fictitious minor’s will”, take a substantial step corroborating his 

intent, or use a means of interstate commerce to communicate with a purported 

minor as required to support a conviction under 18 U.S.C. § 2422(b). The 

motion was denied, and the jury found Montgomery guilty. 

Following trial, Montgomery again moved for a judgment of acquittal 

and moved for a new trial. In the motions, Montgomery raised the same 

grounds as those in the pre-verdict motion for judgment of acquittal. In 

addition, Montgomery asserted the Government failed to present sufficient 

evidence to overcome his prima facie showing of entrapment. The court denied 

both motions. 

The presentence investigation report (PSR) assigned a total offense level 

of 38 and a criminal history category of I, resulting in an advisory Guidelines 

sentencing range of 235 to 240 months’ imprisonment. The total offense level 

included an eight-level enhancement pursuant to Guideline § 2G1.3(b)(5) 

because the fictitious minor involved in the offense was said to be under 12 

years of age. Montgomery objected to the enhancement, asserting it violated 

his due-process rights and constituted “sentencing entrapment” or “sentence 

factor manipulation”. Along that line, he claimed the Government had 

“exclusive control over facts”, including the purported minor’s age, that it could 

manipulate to “ratchet up the sentence in violation of due process”. 

Montgomery also moved for a downward variance based on his age, his lack of 

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criminal history, the nonviolent nature of the offense, his education level, his 

low risk of recidivism, and his not having had contact with the fictitious minor. 

At the sentencing hearing, the court acknowledged the PSR’s sentencing 

range was in error, with the correct range calling for 235 to 293 months’

imprisonment. After hearing argument, the court overruled Montgomery’s 

objections to the PSR, including his opposition to the Guideline § 2G1.2(b)(5)

enhancement. Montgomery renewed the request for a downward variance, but 

the court concluded a variance was unwarranted. Montgomery was sentenced, 

inter alia, to 235 months’ imprisonment. 

For the first of his three issues, Montgomery asserts the court erred by 

denying his motion to dismiss the indictment because the undisputed facts did 

not state a violation of 18 U.S.C. § 2422(b). Denial of a motion to dismiss an 

indictment is reviewed de novo. United States v. Arrieta, 862 F.3d 512, 514 

(5th Cir. 2017). 

A conviction under § 2422(b) requires defendant: used a facility of 

interstate commerce to commit the offense; was aware the victim was younger 

than 18; by engaging in sexual activity with the victim, could have been 

charged with a criminal offense under state law; and knowingly persuaded, 

induced, enticed, or coerced the victim to engage in criminal sexual activity. 

18 U.S.C. § 2422(b); United States v. Rounds, 749 F.3d 326, 333 (5th Cir. 2014). 

“To sustain a conviction for attempt, the evidence must show that the 

defendant (1) acted with the culpability required to commit the underlying 

substantive offense, and (2) took a substantial step towards its commission.” 

United States v. Olvera, 687 F.3d 645, 647 (5th Cir. 2012) (internal quotation 

marks and footnote omitted). 

Section 2422(b) does not require defendant actually engage in sexual 

contact, see United States v. Barlow, 568 F.3d 215, 219 n.10 (5th Cir. 2009); 

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and defendant can violate the statute solely through communications with an 

adult where defendant directs his inducements to a child, Olvera, 687 F.3d at

647–48, or communications with an undercover agent posing as a person with 

access to a child, United States v. Caudill, 709 F.3d 444, 445–46 (5th Cir. 2013). 

Montgomery contends the undisputed facts were insufficient to state a 

violation of § 2422(b) because it requires “defendant’s interaction with the 

intermediary . . . be aimed at transforming or overcoming the child’s will”. 

United States v. Hite, 769 F.3d 1154, 1164 (D.C. Cir. 2015). In doing so, 

Montgomery attempts to distinguish our court’s holding in Caudill by 

asserting our court required confirmation that Caudill’s minor victims would 

engage in sexual intercourse, whereas Montgomery “only agreed to an initial 

meeting with the adult intermediary and fictitious minor to get to know them[,] 

and no offer of compensation was made”. Montgomery also notes he rejected 

the Agent’s offer to pass a message to her daughter before the meeting and 

there was no evidence of communication with the minor. 

Nevertheless, our circuit requires only that defendant take “actions 

directed toward obtaining the child’s assent through an intermediary”. Olvera, 

687 F.3d at 648 (emphasis omitted). Defendant can attempt to persuade, 

induce, entice, or coerce a minor to engage in sexual activity by relying on a 

parent’s influence or control over the child. See Caudill, 709 F.3d at 447. The 

indictment alleged Montgomery’s inducements were directed at obtaining a 

ten-year-old child’s consent to sexual activity through a Government agent he 

believed to be the child’s mother. Further, “[w]hether there was inducement, 

persuasion, or enticement is a question of fact for the jury to decide”. United 

States v. Lundy, 676 F.3d 444, 450 (5th Cir. 2012). Therefore, the court did not 

err by denying Montgomery’s motion to dismiss the indictment.

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Montgomery next asserts the court erred by denying his motion for 

judgment of acquittal and abused its discretion by denying his new-trial

motion. Because both motions were based on the same grounds, they will be 

discussed together. Montgomery claims the trial evidence was insufficient to 

show: his intent to violate § 2422(b); he took a substantial step corroborating 

that intent; and the Government rebutted his prima facie showing of 

entrapment. 

The denial of Montgomery’s motion for judgment of acquittal is reviewed 

de novo. United States v. Lewis, 774 F.3d 837, 841 (5th Cir. 2014). Denial of 

the new-trial motion is reviewed for abuse of discretion; questions of law, de 

novo. United States v. Pratt, 807 F.3d 641, 645 (5th Cir. 2015). A new trial 

may be granted in the interest of justice. Fed. R. Crim. P. 33(a). Motions for 

a new trial are “disfavored and reviewed with great caution”. Pratt, 807 F.3d 

at 645. 

When reviewing a challenge to the sufficiency of the evidence, our court 

considers “whether any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt”. United States v. Imo, 739 

F.3d 226, 235 (5th Cir. 2014) (internal quotation marks, citation, and emphasis 

omitted). The evidence is viewed “in the light most favorable to the verdict”, 

and this court accepts “all credibility choices and reasonable inferences made 

by the trier of fact which tend to support the verdict”. Id. (internal quotation 

marks and citation omitted). “The evidence presented need not exclude every 

reasonable hypothesis of innocence or be wholly inconsistent with every 

conclusion except that of guilt.” Id. (internal quotation marks and citation 

omitted). “[T]his court asks only whether the jury’s decision was rational, not 

whether it was correct”. Lewis, 774 F.3d at 841 (internal quotation marks and 

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citation omitted). Montgomery claims the evidence was insufficient in the 

following three ways. Each claim fails. 

First, Montgomery contends: § 2422(b) “does not criminalize intent to 

persuade at a future face-to-face meeting, or agreeing or arranging to have sex 

with a minor through an adult intermediary”; and “the adult must direct some 

of his inducements to the minor . . . or seek confirmation that the minor would 

engage in sexual activity”. Nevertheless, our court has specifically held 

“defendant’s acts must target a child”, but “the terms ‘persuade,’ ‘induce,’ 

‘entice,’ or ‘coerce’ do not require that there be communication between a 

perpetrator and a child or that a perpetrator must request an intermediary to 

convey the perpetrator’s communications to a minor”. Caudill, 709 F.3d at 447.

Montgomery sought confirmation that the Agent’s daughter would be 

interested in having sex with him, and asked the Agent to explain why she 

thought her daughter would be interested in him. Further, Montgomery’s 

communications with the Agent evinced an intent to persuade, induce, entice, 

or coerce her child into sexual activity by stating that, for the first encounter,

they would need to give the child “sleepy medicine so she will tape [sic] a nap 

while we play w [sic] her”, and by relying on the Agent’s influence over her 

child. Montgomery asked what the Agent wanted to have happen to her “little 

babe”; described his “ideal night” with the daughter at the Agent’s request and 

stated he would not “force the situation”; offered to give the child a trophy he 

won; asked the Agent what she had told her daughter about him; and stated 

he would hate to disappoint the child. In short, a rational jury could have 

found the evidence sufficient to show Montgomery possessed the requisite 

intent to violate § 2422(b). See Pratt, 807 F.3d at 645; Imo, 739 F.3d at 235; 

Lewis, 774 F.3d at 841.

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Second, Montgomery contends the evidence did not show he took a 

substantial step toward a violation of § 2422(b). “A substantial step is defined 

as conduct which strongly corroborates the firmness of defendant’s criminal 

attempt.” United States v. Broussard, 669 F.3d 537, 547 (5th Cir. 2012) 

(internal quotation marks and citation omitted). 

Our court has routinely held conduct like Montgomery’s constitutes a 

substantial step toward committing a violation of § 2422(b). See, e.g., Olvera, 

687 F.3d at 648 (finding defendant took substantial steps by asking adult 

intermediary to send sexual messages and photos to a minor and arriving at 

arranged meeting place); Barlow, 568 F.3d at 219–20 (finding defendant took 

a substantial step when, over the course of months, he engaged in sexual 

conversations with a purported minor, drove to the meeting location, and then 

left early); United States v. White, 636 F. App’x 890, 893 (5th Cir. 2016) (finding 

the evidence was sufficient to show an attempt to violate § 2422(b) when 

defendant exchanged sexual messages with purported minor and arrived at 

arranged meeting place with condoms), cert. denied, 136 S. Ct. 2039 (2016). 

“Travel to a meeting place is . . . sufficient to establish” a substantial step 

toward an attempt to violate § 2422(b). United States v. Howard, 766 F.3d 414, 

421 (5th Cir. 2014). 

Third, Montgomery asserts the evidence was insufficient to support the 

jury’s rejection of his entrapment defense. To establish entrapment, defendant 

must make a prima facie showing of “(1) his lack of predisposition to commit 

the offense and (2) some governmental involvement and inducement more 

substantial than simply providing an opportunity or facilities to commit the 

offense”. United States v. Theagene, 565 F.3d 911, 918 (5th Cir. 2009). The 

burden then shifts to the Government “to prove beyond a reasonable doubt that 

the defendant was disposed to commit the offense prior to first being 

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approached by government agents”. United States v. Bradfield, 113 F.3d 515, 

522 (5th Cir. 1997). 

Generally, entrapment is a question for the jury. Mathews v. United 

States, 485 U.S. 58, 63 (1988). When, as here, the jury is instructed on 

entrapment, “the applicable standard of review is the same which applies to 

sufficiency of the evidence”. United States v. Reyes, 239 F.3d 722, 739 (5th Cir. 

2001) (internal quotation marks and citation omitted). In other words, our 

court must accept the facts in the light most favorable to the verdict and 

reverse “only if no rational jury could have found beyond a reasonable doubt 

either (1) lack of government inducement or (2) predisposition to commit the 

charged crime”. Id. 

Montgomery contests evidence of predisposition. He distinguishes

between sexual interest in “young ladies, [17] years or older” with sexual 

interest in minors. Specifically, he points to text messages indicating his 

interest in teenagers and his Craigslist ad, which requested responses from 

women aged 17 to 25. He further contends his statement to the Agent that he 

knew he wanted to have sex with a minor despite having never done so 

suggested a “fantasy” rather than a “true predisposition” to sexual attraction 

to minors. Nevertheless, the evidence was sufficient to show both 

predisposition and lack of Government influence. 

Upon first learning the Agent’s daughter was ten years old, Montgomery 

immediately asked whether she and her daughter were sexually active 

together. The Agent testified that, in other investigations, suspects would 

often react with revulsion or immediately disengage upon learning her 

daughter’s age. Montgomery also quickly suggested giving the child “sleepy 

medicine so she will tape [sic] a nap while we play w [sic] her”. He stated he 

“like[d] younger” and knew what he wanted when questioned about his sexual 

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interest in the child. Despite the Agent’s statements that she did not intend 

to have sex with Montgomery and was not interested in role play, Montgomery 

continued to chat with her. Montgomery was also aware of the illegal nature 

of his actions and demonstrated knowledge about avoiding legal repercussions. 

Finally, the Agent disengaged from the conversation at times and offered 

Montgomery several opportunities to abandon his plans. Because the evidence 

showed Montgomery’s “active, enthusiastic participation” and “demonstrated 

expertise in the criminal endeavor”, it was sufficient to show his predisposition. 

See Theagene, 565 F.3d at 919.

In sum, a rational jury could have found the evidence sufficient to show 

Montgomery possessed the requisite intent to violate § 2422(b), took a 

substantial step toward the commission of the offense, and was not entrapped. 

Accordingly, the court did not err or abuse its discretion by denying his 

motions. 

Regarding his sentence, Montgomery contends the court erred by 

overruling his objection to the eight-level enhancement under Guideline

§ 2G1.3(b)(5). (Although Montgomery references the court’s not granting his 

request for a downward variance, he fails to brief adequately any asserted 

error in the court’s decision, thereby waiving the issue (if, in fact, it is even 

raised). See United States v. Reagan, 596 F.3d 251, 254–55 (5th Cir. 2010).) 

Although post-Booker, the Sentencing Guidelines are advisory only, the 

district court must avoid significant procedural error, such as improperly 

calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 

38, 48–51 (2007). If no such procedural error exists, a properly preserved 

objection to an ultimate sentence is reviewed for substantive reasonableness 

under an abuse-of-discretion standard. Id. at 51; United States v. DelgadoMartinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues 

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preserved in district court, its application of the Guidelines is reviewed de novo; 

its factual findings, only for clear error. E.g., United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 

Section 2G1.3(b)(5) applies an eight-level enhancement to the base 

offense level if “the offense involved a minor who had not attained the age of 

12 years”. U.S.S.G. § 2G1.3(b)(5). The Guidelines define a “minor” as 

(A) An individual who had not attained the age of 18 years; (B) an 

individual, whether fictitious or not, who a law enforcement officer 

represented to a participant (i) had not attained the age of 18 

years, and (ii) could be provided for the purposes of engaging in 

sexually explicit conduct; or (C) an undercover law enforcement 

officer who represented to a participant that the officer had not 

attained the age of 18 years.

Id. § 2G1.3 cmt. n.1. 

Montgomery contends the court erred by applying the enhancement 

because the Agent unilaterally chose the age of the fictitious minor, which 

allowed the Government to manipulate his sentence in a violation of due 

process. Further, he claims the Government’s selection of the minor’s age 

constitutes sentence entrapment or sentence factor manipulation. 

Sentencing entrapment or sentence factor manipulation “occurs when a 

defendant, although predisposed to commit a minor or lesser offense, is 

entrapped in committing a greater offense subject to greater punishment”. 

United States v. Jones, 664 F.3d 966, 984 (5th Cir. 2011). In claiming 

sentencing entrapment, defendant must establish he was persuaded to commit 

a greater offense than he otherwise was predisposed to commit or that the 

conduct of law enforcement officials was overbearing or outrageous. United 

States v. Robertson, 297 F. App’x 316, 317 (5th Cir. 2008). 

Our court has not determined whether the concept of sentencing 

entrapment or factor manipulation is a cognizable claim but has addressed a 

similar contention in the context of a due-process claim. Jones, 664 F.3d at 

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984; Robertson, 297 F. App’x at 317 (noting viability of “sentencing 

entrapment” defense remains unresolved); see also United States v. Tremelling, 

43 F.3d 148, 150–52 (5th Cir. 1995) (declining to recognize the defense but 

instead analyzing the claim under the due-process outrageous-conduct 

standard). Assuming, without deciding, our court recognizes such a defense, 

Montgomery has not met his burden to show that he was persuaded to commit 

a greater offense than he otherwise was predisposed to commit or that the 

conduct of law enforcement officials was overbearing or outrageous. See

Robertson, 297 F. App’x at 317. 

As discussed supra, he eagerly discussed the possibility of having sex 

with the Agent’s daughter after learning she was ten years old and even 

suggested drugging the child with sleeping medicine. He asserted he “like[d] 

younger” and knew what he wanted when questioned about his sexual interest 

in the child. And, the Agent’s conduct was not overbearing or outrageous 

because she repeatedly disengaged from the conversation and offered 

Montgomery opportunities to abandon his plans. 

AFFIRMED.

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