NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 9 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10035

Plaintiff-Appellee, D.C. No. 2:15-cr-00227-JAM-1 v.

MICHAEL CAREY CLEMANS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Submitted February 4, 2020 San Francisco, California

Before: PAEZ and BEA, Circuit Judges, and JACK,** District Judge.

Michael Clemans appeals the district court’s denial of his motion for

acquittal under Rule 29 of the Federal Rules of Criminal Procedure. He also

argues the district court committed numerous sentencing errors. Reviewing de

novo the district court’s denial of Clemans’s Rule 29 motion, Jackson v. Virginia,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Janis Graham Jack, United States District Judge for the Southern District of Texas, sitting by designation. 443 U.S. 307, 319 (1979), and for plain error the sentencing errors, Johnson v.

United States, 520 U.S. 461, 467 (1997), we affirm.

1. There was sufficient evidence for a jury to convict Clemans of traveling

or attempted travel with the intent to engage in illicit sexual conduct in violation of

18 U.S.C. § 2423(b) and (e) (Count One). Numerous chat messages between

Clemans and Nelia Cruz, a woman who helped recruit minor girls for Clemans in

Manila, Philippines, demonstrate that when Clemans left the United States, he had

the requisite intent to engage in illicit sex. In the days leading up to Clemans’s

departure from the United States, Clemans shared with Cruz his desire to have sex

with minors, the types of girls he preferred, the price he was willing to pay, and the

locations in which he felt comfortable having sex with them. Thus, even though

Clemans had not finalized his itinerary to Manila, a jury could reasonably infer that

when he traveled from the United States to Thailand, he intended to continue his

travel to Manila to engage in illicit sexual conduct.

2. A rational jury could conclude that Clemans conspired to travel with the

intent to engage in illicit sexual conduct (Count Two). The record contained

evidence that Clemans entered an agreement with Lyan Tandeg, another woman

with whom Clemans communicated to recruit minor girls in Manila, with the intent

that Clemans travel to the Philippines to have sex with girls. Clemans paid Tandeg

to find, photograph, and arrange sex with minors in the Philippines. Clemans’s

2 overarching agreement necessarily implied that he would travel from the United

States to Manila, thus meeting the requisite jurisdictional nexus.

3. A rational jury could conclude that Clemans “offered” to purchase or

otherwise take temporary custody of children knowing they would appear in

pornography, in violation of 18 U.S.C. § 2251A(b)(1)–(2), (c)(2) (Count Four).

Clemans asked Tandeg to make offers to parents to recruit their children for child

pornography. Even though Clemans did not speak directly with the parents,

nothing in the statute suggests that a defendant must communicate directly with the

parents to constitute an “offer.” See § 2251A. Further, the statute neither specifies

to whom the offer must be made nor suggests that a defendant can escape criminal

liability by making the offer to an intermediary, rather than to the parent directly.

See id. Thus, even though Clemans conveyed his offers to Tandeg, and instructed

her to convey those offers to parents, that conduct was sufficient to meet

§ 2251A’s jurisdictional nexus.

4. Lastly, even assuming the district court committed clear or obvious errors

at sentencing by (1) applying the wrong guidelines section to calculate Clemans’s

offense levels for his convictions for Count Two and conspiracy to produce child

pornography (Count Three, 18 U.S.C. § 2251(c), (e)); (2) applying the two-level

enhancement for conspiring to produce images that contain violent conduct or

infants under United States Sentencing Guidelines (“U.S.S.G.”) § 2G2.1(b)(4)(A)–

3 (B); (3) creating a separate group for Count Four rather than including it in Groups

Three, Four, and Five; and (4) denying Clemans a two-level reduction for

acceptance of responsibility; Clemans fails to demonstrate that his guidelines range

would have been different. With or without the adjustments, Clemans’s total

offense level would have exceeded 43, and thus still placed him at a recommended

sentence of life imprisonment. See U.S.S.G. § 5A, cmt. 2. We therefore cannot

say any error was plain.

AFFIRMED.

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