Thomas Evenstad v. Terry L. Carlson

1The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2108
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Joseph R. Gabourel, also known as *
jowee6869, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 14, 2006
Filed: November 22, 2006
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Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Joseph R. Gabourel entered a conditional plea of guilty to using the Internet to
attempt to entice a minor to engage in illegal sexual activity in violation of 18 U.S.C.
§ 2422(b), preserving the right to appeal the district court's 1 denial of his motion to
dismiss the indictment based on the defense of legal impossibility. The "minor"
Gabourel solicited was an undercover police officer posing as a minor. Gabourel
contends § 2422(b) requires the victim to be an actual minor.

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-2-
This same contention has since been squarely addressed and rejected in United
States v. Helder, 452 F.3d 751, 756 (8th Cir. 2006) ("[W]e hold that an actual minor
victim is not required for an attempt conviction under § 2422(b)"); see also United
States v. Hicks, 457 F.3d 838, 841 (8th Cir. 2006) (following Helder). Following
Helder, we affirm the district court.
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