UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4896

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WARSHAHENNEDIGE ANTON RAJ NISHANTHA FERNANDO,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. N. Carlton Tilley, Jr.,

District Judge. (1:07-cr-00038-NCT)

Submitted: August 14, 2008 Decided: September 5, 2008

Before MOTZ and GREGORY, Circuit Judges, and WILKINS, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Donald K. Tisdale, Sr., Christopher R. Clifton, GRACE TISDALE &

CLIFTON, P.A., Winston-Salem, North Carolina, for Appellant. Anna

Mills Wagoner, United States Attorney, Michael A. DeFranco,

Assistant United States Attorney, Greensboro, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.
1Specifically, the indictment alleged that the sexual activity

would violate N.C. Gen. Stat. § 14-202.1 (2007), prohibiting taking

indecent liberties with a minor. 

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PER CURIAM:

Warshahennedige Anton Raj Nishantha Fernando (“Fernando”)

appeals his convictions following a jury trial and his sentence for

using interstate commerce to coerce or entice a minor to engage in

illegal sexual activity,1 in violation of 18 U.S.C.A. § 2422(b)

(West 2000 & Supp. 2008), and attempting to transfer obscene

material to a minor under the age of 16, in violation of 18 U.S.C.

§ 1470 (2000). He claims the district court erred in denying his

Fed. R. Crim. P. 29 motion for acquittal. He also challenges

certain instructions and contends that his 120-month statutorily

mandated sentence is unreasonable. We affirm. 

The evidence at trial established that in August 2006,

Fernando, who was forty-two and identified himself using the screen

name “thicktoolngso,” began chatting on the internet with

“kimmie14fun” (“Kimmie"), an undercover officer posing as a

fourteen-year-old girl. During the span of approximately a week,

Fernando initiated four on-line conversations with Kimmie.

Fernando brought up sexually explicit topics and electronically

sent Kimmie a picture of himself holding his erect penis. Fernando

told Kimmie he wanted to meet her in person, and Kimmie agreed to

meet him in front of a Borders Bookstore. 
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Fernando was arrested at the arranged meeting place and

admitted what he had done to police. At trial, Fernando maintained

that he thought Kimmie was at least twenty-five and that, although

he pursued sexual conversations with her, he came to meet her

merely because he was “curious” to see who she was. 

Fernando argues that the district court erred in denying

his Rule 29 motion for acquittal. He contends that he could not be

convicted of violating § 2422(b) because he interacted with an

adult, not a minor. This court reviews de novo the denial of a

Rule 29 motion for acquittal, viewing the evidence in the light

most favorable to the Government. United States v. Alerre, 430

F.3d 681, 693 (4th Cir. 2005). 

Under § 2422(b), it is unlawful for a person, “using

. . . any facility or means of interstate . . . commerce . . . [to]

knowingly persuade[], induce[], entice[], or coerce[] any

individual who has not attained the age of 18 years, to engage in

. . . any sexual activity for which any person can be charged with

a criminal offense, or attempt[] to do so . . . .” See 18 U.S.C.A.

§ 2422(b). To obtain a conviction under § 2422(b), then, the

Government also had to establish that the sexual activity Fernando

sought to engage in would violate N.C. Gen. Stat. § 14-202.1
2

To obtain a conviction for indecent liberties under N.C. Gen.

Stat. § 14-202.1, the State is required to prove the following

elements: “(1) the defendant was at least 16 years of age; (2) he

was five years older than his victim; (3) he willfully took or

attempted to take an indecent liberty with the victim; (4) the

victim was under 16 years of age at the time the alleged act or

attempted act occurred; and (5) the action by the defendant was for

the purpose of arousing or gratifying sexual desire.” State v.

Thaggard, 608 S.E.2d 774, 786-87 (N.C. App. 2005).

3In addition, several circuits that have considered the

impossibility defense to charges of unlawful sexual acts involving

a minor have uniformly rejected the argument that an actual child

must be placed at risk to secure a conviction under § 2422(b).

See, e.g., United States v. Helder, 452 F.3d 751, 753-56 (8th Cir.

2006); United States v. Sims, 428 F.3d 945, 959-60 (10th Cir.

2005); United States v. Meek, 366 F.3d 705, 717-20 (9th Cir. 2004);

United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002); United

States v. Farner, 251 F.3d 510, 512-13 (5th Cir. 2001).

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(2007), which makes it unlawful for an individual to take indecent

liberties with a child under the age of sixteen.2

In State v. Ellis, 657 S.E.2d 51 (N.C. App. 2008), the

North Carolina Court of Appeals determined that, under state law,

indecent interaction with an adult undercover officer may

constitute the crime of attempted indecent liberties with a child,

where the defendant believed the victim to be the requisite age.

Ellis, 657 S.E.2d at 54-55.3 This court also recently upheld a

conviction under 18 U.S.C.A. § 2423(b) (West 2000 & Supp. 2008)

(prohibiting traveling in interstate commerce “for the purpose of

engaging in illicit sexual conduct” with a minor) where, although

the defendant believed he was arranging to meet a twelve-year-old

girl through an intermediary, no actual minor was placed at risk.

United States v. Kelly, 510 F.3d 433, 441 (4th Cir. 2007), cert.
4

To the extent Fernando claims that violation of the North

Carolina statute requires that the defendant must be in the

presence (actual or constructive) of a minor, his argument is

unavailing. Fernando was convicted of violating § 2422(b), which

requires the Government to establish that he persuaded or enticed

a minor to commit illegal sexual activity, or attempted to do so.

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denied, 128 S. Ct. 1917 (2008). This court rejected the argument

that an actual minor must be involved to secure a conviction under

§ 2423(b), concluding, “[t]his sensible result follows from the

clear language of the statute, under which a conviction ‘turns

simply on the illegal purpose for which [the defendant] traveled.’”

Kelly, 510 F.3d at 441 (quoting Root, 296 F.3d at 1231).

Accordingly, we conclude that the district court did not err in

denying Fernando’s motion for judgment of acquittal based on

impossibility. 

Fernando challenges the jury instructions in two

respects. He first argues that the district court failed to

“adequately explain” N.C. Gen Stat. § 14-201.1 (taking indecent

liberties with children). Fernando did not object to this

instruction below, and identifies no specific error on appeal. The

instruction included the elements of § 14-202.1 as described in the

statute and in North Carolina caselaw. We conclude there was no

error, plain or otherwise. Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 731-32 (1993).4

Fernando further suggests that it was error for the

district court to omit an instruction on entrapment. However,
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Fernando expressly declined to seek such an instruction below.

Even if this claim had been properly preserved for appellate review

and presented on appeal, the evidence did not support an entrapment

instruction. See United States v. Harrison, 37 F.3d 133, 136 (4th

Cir. 1994) (“[W]hen government agents merely offer an opportunity

to commit the crime and the defendant promptly avails himself of

that opportunity, an entrapment instruction is not warranted.”). 

Finally, while recognizing the “mandatory nature” of his

sentence, Fernando argues that his 120-month statutorily mandated

minimum sentence is unreasonable. This court reviews a district

court’s sentence for reasonableness under an abuse-of-discretion

standard. Gall v. United States, 128 S. Ct. 586, 597 (2007); see

also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

When sentencing a defendant, a district court must: (1) properly

calculate the Guidelines range; (2) determine whether a sentence

within that range serves the factors set out in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2008); (3) implement mandatory

statutory limitations; and (4) explain its reasons for selecting a

sentence. Pauley, 511 F.3d at 473. In the Fourth Circuit, “[a]

sentence within the proper Sentencing Guidelines range is

presumptively reasonable.” United States v. Allen, 491 F.3d 178,

193 (4th Cir. 2007); see Rita v. United States, 127 S. Ct. 2456,

2462-69 (2007) (upholding presumption of reasonableness for a

within-Guidelines sentence). Absent a motion for substantial
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assistance, a district court lacks authority to impose a sentence

below the statutory mandatory minimum. See United States v. Allen,

450 F.3d 565, 568-69 (4th Cir. 2006). Here, the district court

followed the necessary procedural steps in sentencing Fernando. It

properly calculated the Guidelines range and considered the

§ 3553(a) factors before sentencing Fernando to the statutory

mandatory minimum. The district court thus did not abuse its

discretion in imposing the 120-month sentence.

Accordingly, we affirm Fernando’s convictions and

sentence. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED