United States Court of Appeals

for the Fifth Circuit

No. 21-10381

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Carlitos Santiago Santos, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:19-CR-107-1

Before Barksdale, Willett, and Duncan, Circuit Judges.

Per Curiam:*

Carlitos Santiago Santos was convicted by a jury of attempted 

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

sentenced, inter alia, within the advisory Sentencing Guidelines term to 192-

months’ imprisonment. 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 22, 2022

Lyle W. Cayce

Clerk

Case: 21-10381 Document: 00516291019 Page: 1 Date Filed: 04/22/2022
No. 21-10381

2

Santos was arrested after a “sting” operation “chat” through the 

Grindr application, in which he sought to have sexual relations with a person 

whom he believed to be a 15-year-old boy (the minor). At trial, and over 

Santos’ objection, the Government introduced extrinsic evidence showing 

that, during a post-arrest interview, he admitted: he was sexually attracted 

to underaged boys; and he had engaged in sexual contact in the Philippines 

with about 15 underaged boys. Santos did not present evidence at trial. 

Santos contends: the evidence introduced to prove his guilt was 

insufficient; the district court abused its discretion by admitting the extrinsic 

evidence; and it erred in denying his motion for a new trial, in applying the 

Guideline § 4B1.5 enhancement for a pattern of prohibited sexual conduct,

and in overruling his request for an acceptance-of-responsibility reduction. 

Because the claimed sufficiency error was preserved, the issue is

reviewed de novo. E.g., United States v. Rodriguez-Lopez, 756 F.3d 422, 430

(5th Cir. 2014). Our court “must affirm a conviction if, after viewing the 

evidence and all reasonable inferences in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt”. Id. at 430–31 (citing Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)).

As noted, Santos was convicted of attempted enticement of a minor, 

in violation of 18 U.S.C. § 2422(b). To obtain a conviction under that statute, 

the Government was required to prove beyond a reasonable doubt that: (1) 

Santos “used a facility of interstate commerce to commit the offense”; (2) 

“he was aware that [the minor] was younger than [18]”; (3) “by engaging in 

sexual activity with [the minor], he could have been charged with a criminal 

offense”; and (4) he knowingly attempted to persuade, induce, entice, or 

coerce the minor to engage in criminal sexual activity. United States v. 

Rounds, 749 F.3d 326, 333 (5th Cir. 2014). “Sending sexually explicit 

Case: 21-10381 Document: 00516291019 Page: 2 Date Filed: 04/22/2022
No. 21-10381

3

messages is probative evidence of intent to induce, persuade, entice, or 

coerce a minor to engage in illegal sex.” United States v. Peterson, 977 F.3d 

381, 389 (5th Cir. 2020). In addition, to prove an attempted violation of that 

statute, the Government had to prove beyond a reasonable doubt that: 

Santos acted with the culpability to commit the offense; and he “took a 

substantial step toward its commission”. United States v. Broussard, 669 F.3d 

537, 547 (5th Cir. 2012). 

The admission of extrinsic evidence is reviewed under a heightened 

abuse-of-discretion standard “because evidence in criminal trials must be 

strictly relevant to the . . . offense charged”. United States v. Smith, 804 F.3d 

724, 735 (5th Cir. 2015) (citation omitted). “Evidence of any other crime, 

wrong, or act is not admissible to prove a person’s character in order to show 

that on a particular occasion the person acted in accordance with the 

character.” Fed. R. Evid. 404(b)(1). On the other hand, such “evidence 

may be admissible for another purpose, such as proving motive, opportunity, 

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of 

accident”. Fed. R. Evid. 404(b)(2). Therefore, to be admissible, extrinsic 

evidence must be “relevant to an issue other than the defendant’s character” 

and its probative value may not be “substantially outweighed by its undue 

prejudice”. Smith, 804 F.3d at 735; see also Fed. R. Evid. 403. 

Santos asserts: the Government failed to prove he attempted to 

persuade, induce, entice, or coerce the minor to engage in criminal sexual 

activity, see Rounds, 749 F.3d at 333 n.4 (where defendant did not dispute 

other elements, this court limited its consideration to the enticement and 

persuasion elements); and the court erred in overruling his objection to the 

admission of the extrinsic evidence, which was both not relevant and unfairly 

prejudicial. 

Case: 21-10381 Document: 00516291019 Page: 3 Date Filed: 04/22/2022
No. 21-10381

4

The extrinsic evidence showing that Santos was sexually attracted to 

underaged boys and had acted on that attraction in the past was highly 

probative of Santos’ intent, motive, and knowledge. The court mitigated the 

prejudicial effect of the evidence by: requiring redaction of some items; and 

giving limiting instructions. United States v. Nieto, 721 F.3d 357, 371 (5th Cir. 

2013) (explaining “jurors are presumed to follow the instructions given to 

them by the court”) (citation omitted). Santos has not shown the court 

abused its discretion in admitting the evidence. 

Viewing the evidence in the requisite light most favorable to the 

verdict, including the contents of the above-referenced Grindr conversation, 

in which Santos persisted in seeking to meet the minor for sex after learning 

the minor was age 15, and Santos’ showing up for the meeting, the 

Government proved beyond a reasonable doubt that Santos knowingly 

attempted to persuade, induce, or entice the minor to engage in criminal 

sexual activity. 

Santos next claims the court erred in denying his new-trial motion, 

which was based on new evidence: a polygraph examination allegedly 

showing his post-arrest admissions regarding his sexual activities with minors 

in the Philippines were false. “A new trial may . . . be warranted based on 

newly discovered evidence, but such motions are disfavored and reviewed 

with great caution”. United States v. Chapman, 851 F.3d 363, 380 (5th Cir. 

2017) (citation omitted). Review is for abuse of discretion. See id.

To obtain a new trial based on newly discovered evidence, the 

defendant must demonstrate: (1) the evidence is newly 

discovered and was unknown to the defendant at the time of 

trial; (2) the failure to detect the evidence was not due to a lack 

of diligence by the defendant; (3) the evidence is not merely 

cumulative or impeaching; (4) the evidence is material; and 

(5) the evidence if introduced at a new trial would probably 

Case: 21-10381 Document: 00516291019 Page: 4 Date Filed: 04/22/2022
No. 21-10381

5

produce an acquittal. Failure to demonstrate any one of these 

five factors is fatal to the motion for a new trial.

Id. at 381 (citation omitted). The court concluded that Santos failed to satisfy 

the third, fourth, and fifth factors. 

As for the third factor, the new evidence was offered to impeach: 

Santos’ prior inconsistent statements; and the testimony of the

Government’s witness who conducted the interview. 

As for the fourth and fifth factors, Santos contends the polygraph 

evidence would have resulted in exclusion of extrinsic evidence, which would 

have resulted in his acquittal. These contentions are speculative. 

In sum, the court did not abuse its discretion in its conclusions on any 

of the three factors. As noted, failure to succeed on all five precludes a new 

trial. 

Regarding sentencing, Santos challenges: the Guideline § 4B1.5(b)(1) 

enhancement for a pattern of prohibited sexual conduct; and the denial of his 

request for an acceptance-of-responsibility reduction. 

Although post-Booker, the 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, 46, 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. Delgado-Martinez, 

564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in 

district court, as in this instance, its application of the Guidelines is reviewed 

de novo; its factual findings, only for clear error. E.g., United States v. 

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

Case: 21-10381 Document: 00516291019 Page: 5 Date Filed: 04/22/2022
No. 21-10381

6

“The Government has the burden of demonstrating by a 

preponderance of the evidence the facts necessary to support a Guidelines 

enhancement.” United States v. Abrego, 997 F.3d 309, 312 (5th Cir. 2021). In 

that regard, “the district court may consider any information . . . bear[ing]

sufficient indicia of reliability to support its probable accuracy”. Id.

Santos maintains: the defense polygraph evidence shows that the 

Guideline § 4B1.5(b)(1) enhancement was based on information that was 

untrue, inaccurate, and unreliable; and the enhancement is not applicable 

because it is based on conduct that was not prohibited in the Philippines

(stating the boys were older than 12, the age of consent there), where it 

occurred. Guideline § 4B1.5(b)(1) requires imposition of a five-level 

enhancement if defendant “engaged in a pattern of activity involving 

prohibited sexual conduct”. U.S.S.G. § 4B1.5(b)(1). “[P]rohibited sexual 

conduct” means, inter alia, “any offense described in 18 U.S.C. 

§ 2426(b)(1)(A) or (B)”. U.S.S.G. § 4B1.5, cmt. n.4(A)(i). No error has 

been shown. The court’s finding that Santos had engaged in such behavior 

is based on information bearing sufficient indicia of reliability: Santos’ own 

statements. 

In challenging the court’s overruling his objection to the lack of a twolevel adjustment for acceptance of responsibility, Santos asserts he never 

disputed the facts, only whether they constituted an offense under § 2422(b). 

But, as the court explained, Santos disputed his factual guilt. See U.S.S.G. 

§ 3E1.1, cmt. n.2. Deference greater than the clearly-erroneous standard is 

accorded the district court’s determination that an adjustment for 

acceptance of responsibility was not appropriate. United States v. Lord, 915 

F.3d 1009, 1017 (5th Cir. 2019).

AFFIRMED.

Case: 21-10381 Document: 00516291019 Page: 6 Date Filed: 04/22/2022