United States Court of Appeals

for the Fifth Circuit

No. 19-51152

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Cole S. Crocker, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:19-CR-106-1

Before King, Smith, and Wilson, Circuit Judges.

Per Curiam:*

Cole S. Crocker was convicted of one count of attempted coercion and 

enticement of a minor, in violation of 18 U.S.C. § 2422(b). The district court 

sentenced him to 240 months of imprisonment and 10 years of supervised 

release. The district court also imposed a $50,000 fine and a $5,000 

* 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opinion should not be published and is not precedent except under the limited 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

September 18, 2020

Lyle W. Cayce

Clerk

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2

assessment under the Justice for Victims of Trafficking Act (JVTA), 18 

U.S.C. § 3014.

On appeal, Crocker contends that the evidence did not establish a 

violation of § 2422(b).1

 He asserts that sexual interest in children and “sex 

talk” do not meet the requirements of § 2422(b) because such activities are 

not a crime under Texas law. He also asserts that there was no evidence to 

show that he enticed or persuaded a minor to engage in sexual activity. Our

review of Crocker’s sufficiency challenges is de novo. United States v. Imo, 

739 F.3d 226, 235 (5th Cir. 2014). Viewing the evidence “in the light most 

favorable to the verdict,” we must determine “whether any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable 

doubt.” Id. (internal quotation marks and citation omitted).

To begin, a defendant can violate § 2422 through 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). That is what 

happened in this case. Crocker responded to a Craigslist advertisement in 

which an undercover agent, special agent Josh Pirtle, posed as a “young 

uncle” seeking others with “taboo interest.” Crocker’s text messages to 

Agent Pirtle, which were admitted into evidence at trial, conveyed Crocker’s

1

 Section 2422(b) provides that

[w]hoever, using the mail or any facility or means of interstate or foreign 

commerce, or within the special maritime and territorial jurisdiction of the 

United States knowingly persuades, induces, entices, or coerces any 

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

prostitution or any sexual activity for which any person can be charged 

with a criminal offense, or attempts to do so, shall be fined under this title 

and imprisoned not less than 10 years or for life.

(emphasis added); see also United States v. Rounds, 749 F.3d 326, 333 (5thCir. 2014)

(listing the elements the government must prove under § 2422(b)).

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intention to engage in sexual activity with the “uncle’s” niece, described as 

an eight-year-old girl. Thus, contrary to Crocker’s argument, a rational trier 

of fact could have determined beyond a reasonable doubt that Crocker 

contemplated sexual conduct that would have constituted a violation of 

Texas law. Imo, 739 F.3d at 235; see TEX. PENAL CODE § 22.011. 

Crocker also contends that there was no evidence that he took a 

substantial step in the attempt to violate § 2422(b). For a § 2422(b) violation, 

the government must “prove beyond a reasonable doubt that [the defendant] 

intended to persuade, induce, entice, or coerce a person whom he believed to 

be a minor . . . and took a substantial step toward that persuasion or 

enticement.” United States v. Barlow, 568 F.3d 215, 219 (5th Cir. 2009) 

(internal quotation marks and citation omitted). In this context, a 

“substantial step” means “a substantial step toward persuading [the minor 

victim] to engage in illegal sexual activity.” United States v. Broussard, 669 

F.3d 537, 548 (5th Cir. 2012). The evidence introduced at trial showed that 

Crocker went to a hotel to meet Agent Pirtle (the “uncle”) and the eightyear-old girl. This evidence is sufficient for a rational trier of fact to 

determine beyond a reasonable doubt that Crocker took the requisite

substantial step. United States v. Howard, 766 F.3d 414, 419 (5th Cir. 2014).

Crocker next asserts that the district court erred by allowing Agent 

Pirtle to testify regarding his opinion of Crocker’s mental state, specifically 

that Crocker intended to have sex with a child. According to Crocker, Agent 

Pirtle’s testimony constituted improper expert testimony as to Crocker’s 

guilt or innocence. Crocker did not raise this objection at trial, so we review 

for plain error. United States v. Akins, 746 F.3d 590, 597 (5th Cir. 2014); see

Puckett v. United States, 556 U.S. 129, 135 (2009). Agent Pirtle testified as a

lay witness and a law enforcement officer about his first-hand observations in 

this specific case. This is permitted under United States v. El-Mezain, 664 

F.3d 467, 514 (5th Cir. 2011). Crocker’s assertion thus lacks merit. 

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Turning to his sentence, Crocker challenges the $50,000 fine imposed 

by the district court. We review the reasonableness of a defendant’s 

sentence, including a fine, for abuse of discretion. See United States v. 

McElwee, 646 F.3d 328, 337-40 & n.8 (5th Cir. 2011). The district court 

imposed the fine based on Crocker’s earning potential. It was Crocker’s 

burden to establish his inability to pay, but Crocker failed to present any 

evidence that he did not have the future ability to pay the fine. United States 

v. Magnuson, 307 F.3d 333, 335 (5th Cir. 2002). Accordingly, this issue 

likewise lacks merit.

Finally, Crocker contends, for the first time on appeal, that the district 

court erred in finding that he was not indigent for purposes of the JVTA 

assessment imposed by the district court. We review for plain error. Puckett, 

556 U.S. at 135. A district court “shall assess an amount of $5,000 on any 

non-indigent person . . . convicted of an offense . . . relating to sexual 

exploitation and other abuse of children.” 18 U.S.C. § 3014(a)(3) 

(parentheses omitted). District courts may consider future earning capacity 

in determining non-indigence under § 3014(a)(3), and the obligation to pay 

continues for 20 years after the release from imprisonment or the entry of 

judgment, whichever is later. See United States v. Graves, 908 F.3d 137, 141

(5th Cir. 2018), cert. denied, 139 S. Ct. 1360 (2019). Before his conviction, 

Crocker had been a car salesman earning between $60,000 and $100,000 per 

year for 11 years. Crocker has not shown that the district court applied an

incorrect legal standard, nor has he shown that the finding of non-indigence 

was clearly or obviously erroneous. See Puckett, 556 U.S. at 135. 

AFFIRMED.

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