United States of America v. Phillip E. Caldwell

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable James L. Robart, United States District Judge for the**
Western District of Washington, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILLIP E. CALDWELL,
Defendant - Appellant.
No. 09-50202
D.C. No. 2:08-cr-00152-DSF-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted July 16, 2010
Pasadena, California
Before: FARRIS and SILVERMAN, Circuit Judges, and ROBART, District
Judge.**
Phillip Caldwell raises various challenges to his convictions under 18 U.S.C.
§§ 2422(b) and 2252A(a)(2)(A). We have jurisdiction under 28 U.S.C. § 1291.
FILED
AUG 11 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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2
We affirm Caldwell’s § 2422(b) conviction. His conduct was punishable
under the federal enticement statute, as he attempted to induce “sexual activity for
which [he could] be charged with a criminal offense” under California law. 18
U.S.C. § 2422(b); see People v. Martinez, 11 Cal.4th 434, 444 (Cal. 1995); People
v. Austin, 111 Cal.App.3d 110, 114 (Cal. Ct. App. 1980). His arguments that
§ 2422(b) is unconstitutional fail under our settled precedent. See United States v.
Meek, 366 F.3d 705, 721-22 (9th Cir. 2004); United States v. Dhingra, 371 F.3d
557, 561-62 (9th Cir. 2004). The rule of lenity does not apply. The statutes are not
ambiguous.
We affirm Caldwell’s § 2252(a)(2)(A) conviction. A rational trier of fact
could have found that the images were “lascivious exhibitions.” See 18 U.S.C.
§ 2256(2)(A)(v); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The district
court’s decision to exclude Caldwell’s proffered textbook image was not an abuse
of discretion. Caldwell was permitted to argue that the four submitted photos
resembled clinical photos. The court’s admission of Exhibit 38 was not an abuse
of discretion. See United States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001). It
also was not an abuse of discretion to admit the chat references to, and the file
name of, a video that Caldwell sent to whom he thought was a minor child. The
record is sufficient to support conviction.

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3
It was not clear error to impose a $17,500 fine. The Sentencing Guidelines
range suggested a fine of between $17,500 and $175,000. The court made
undisputed factual findings to support the imposition of the fine. Military pensions
may be taken into account for these purposes. See Gleave v. Graham, 954 F. Supp.
599, 610-11 (W.D.N.Y. 1997).
AFFIRMED.

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