USA v. Michael Craig Gorycki

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12823
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
versus
MICHAEL CRAIG GORYCKI,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cr-00004-CEM-DCI-1
____________________
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 1 of 16

-- 1 of 16 --

2 Opinion of the Court 21-12823
Before R OSENBAUM , LUCK , and LAGOA , Circuit Judges.
PER CURIAM:
Michael Gorycki appeals his conviction by jury and his sen-
tence for attempting to entice or induce a minor to engage in un-
lawful sexual activity. He contends that his conviction should be
reversed because the district court allegedly relied on the wrong
definition of “induce” when instructing the jury and denying his
motion for judgment of acquittal. Regarding his sentence, he ar-
gues that the court improperly denied a reduction to his guideline
range for acceptance of responsibility, and that it plainly erred in
applying certain special conditions of supervised release. After
careful review, we affirm.
I.
Gorycki was charged by indictment with one count of at-
tempt to induce, persuade, or entice a minor to engage in unlawful
sexual activity, in violation of 18 U.S.C. § 2422(b). He pled not
guilty and went to trial before a jury.
The trial evidence showed that Gorycki responded to a post
on a pornography website’s forum for “couples seeking man” that
referenced “incest” and “taboo” and sought “like-minded and non-
judgmental” friends. The post was actually made by an undercover
officer as part of a child-exploitation investigation.
During the ensuing conversation over an encrypted messag-
ing service, the “father” claimed to “live together as a couple” with
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 2 of 16

-- 2 of 16 --

21-12823 Opinion of the Court 3
his (fictional) 13-year-old daughter. After briefly asking the father
about his job, Gorycki turned the conversation to “incest things”
and “doin’ things . . . with your daughter.” The father said he was
looking for “like-minded friends” and asked if Gorycki was “into
young,” noting that others “freak” when they find out his daughter
is 13. Gorycki said he was “cool with it” if she was not forced; he
suggested being high would ease any nervousness; and he asked for
a picture of the girl. They discussed the sexual activities Gorycki
wished to engage in with the child, and they agreed to meet up
later that day at Gorycki’s urging. Throughout the conversation,
Gorycki told the father to convey things to the child to help her feel
comfortable, and the father purported to question his daughter in
real time and gain her assent. Gorycki also sent a pornographic
video for the father to show his daughter in anticipation of their
meeting. When Gorycki arrived at the meeting location and told
the father he was ready to engage in sexual activity with the child,
he was arrested. Gorycki then waived his
Miranda rights and sat
for an interview with officers on the scene.
The crux of Gorycki’s defense was that his conduct did not
qualify under § 2422(b) because he never attempted to persuade a
child to do something she would otherwise not be inclined to do.
In his view, the evidence at best showed that he attempted to have
sex with a willing minor, which he maintained § 2422(b) did not
prohibit.
In support of that defense, Gorycki had requested that the
jury be instructed that the term “induce” in § 2422(b) meant
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 3 of 16

-- 3 of 16 --

4 Opinion of the Court 21-12823
overcoming or transforming the will of a minor. The district court
denied this request as foreclosed by
United States v. Murrell, 368
F.3d 1283, 1288 (11th Cir. 2004), which held that “induce” means
simply “to stimulate the occurrence of” or to “cause.” Accordingly,
the court gave this Circuit’s pattern instruction concerning “in-
duce,” which mirrored
Murrell’s definition. Gorycki also filed a
motion for judgment of acquittal, making similar arguments about
inducement, but the court denied the motion. Ultimately, the jury
found Gorycki guilty of violating § 2422(b).
In a presentence investigation report (“PSR”), a probation
officer recommended a guideline range of 135 to 168 months of
imprisonment based on a total offense level of 30 and a criminal
history category of IV. As relevant here, the probation officer de-
clined to apply a reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1 because Gorycki held the government to its bur-
den of proof at trial. The probation officer also recommended that,
while on supervised release, Gorycki abide by additional search, fi-
nancial, and sex-offender conditions.
In objections to the PSR and at sentencing, Gorycki argued
that he should receive a reduction for accepting responsibility be-
cause he never denied the facts of his conduct. Instead, he claimed
that he challenged the applicability of the statute to his conduct
only, and so was permitted to receive a reduction under Applica-
tion Note 2 to § 3E1.1. Application Note 2 states that in “rare situ-
ations” a defendant who is convicted by trial may nevertheless re-
ceive a reduction for acceptance of responsibility.
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 4 of 16

-- 4 of 16 --

21-12823 Opinion of the Court 5
The district court overruled Gorycki’s objection. The court
noted that he had held the government to its burden of proof at
trial on all elements, that he had not expressed any remorse for his
conduct, and that the exception described in Application Note 2
applied only in “rare” circumstances. It therefore adopted the
PSR’s guideline calculations. Gorycki chose not to give a statement
at sentencing. The court sentenced him to 160 months.
In addition to the prison sentence, the district court imposed
a ten-year term of supervised release. Among the conditions of su-
pervised release, the court prohibited Gorycki from incurring any
new credit charges, opening additional lines of credit, or making
major purchases without the approval of his probation officer. The
court also required him to provide the probation officer access to
any requested financial information. No fine or restitution was im-
posed, though. Gorycki did not object to any of the conditions of
his supervised release.
II.
Gorycki challenges his conviction on two grounds. First, he
argues that the district court abused its discretion by refusing to
give his requested jury instruction on the definition of “induce” un-
der § 2422(b). Second, for similar reasons, he contends that the
court should have granted his motion for judgment of acquittal be-
cause insufficient evidence supported his conviction.
We review for abuse of discretion a refusal to give a re-
quested jury instruction, though we review the legal correctness of
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 5 of 16

-- 5 of 16 --

6 Opinion of the Court 21-12823
an instruction
de novo.
United States v. Mayweather, 991 F.3d
1163, 1174–75 (11th Cir. 2021). We review
de novo the denial of a
motion for judgment of acquittal alleging insufficient evidence to
sustain the verdict, viewing the evidence in the light most favorable
to the government and drawing all reasonable factual inferences in
favor of the jury’s verdict.
United States v. Jiminez, 564 F.3d 1280,
1284 (11th Cir. 2009).
Section 2422(b) makes it a crime to attempt to “knowingly
persuade[], induce[], entice[], or coerce[]” any minor to engage in
unlawful sexual activity using interstate commerce. 18 U.S.C.
§ 2422(b). A conviction for attempt requires proof that the defend-
ant (1) intended to cause assent on the part of the minor, and
(2) took actions that constituted a substantial step towards causing
assent.
United States v. Lanzon, 639 F.3d 1293, 1299 (11th Cir.
2011). The government need not prove “that he acted with the
specific intent to engage in sexual activity,” or that he took a sub-
stantial step “toward causing actual sexual contact.”
United States
v. Lee, 603 F.3d 904, 914 (11th Cir. 2010).
In
Murrell, we considered the definition of “induce” for pur-
poses of § 2422(b) where the defendant communicated only
through an adult intermediary. 368 F.3d at 1287. We acknowl-
edged that induce could mean either “to lead or move by influence
or persuasion; to prevail upon,” or, alternatively, “to stimulate the
occurrence of; cause.”
Id. (cleaned up). We ultimately endorsed
the latter definition because the former would essentially render
the term “persuade” superfluous.
See id. And we held that the
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 6 of 16

-- 6 of 16 --

21-12823 Opinion of the Court 7
defendant in that case acted with the requisite intent where he
“communicated with an adult who he believed to be the father of
a thirteen-year-old girl and who presumably exercised influence
over the girl,” and where his “agreement with the father, who was
acting as an agent or representative, implied procuring the daugh-
ter to engage in sexual activity.”
Id.
To determine whether a defendant took a substantial step
towards a violation of § 2422(b), we consider the totality of the de-
fendant’s conduct.
Lee, 603 F.3d at 916. A substantial step occurs
when “the defendant’s objective acts mark his conduct as criminal
such that his acts as a whole strongly corroborate the required cul-
pability.”
Murrell, 368 F.3d at 1288. In
Murrell, for example, we
held that the defendant took a substantial step when he (1) made
incriminating statements to an undercover officer; (2) traveled sev-
eral hours to meet the girl at the hotel; and (3) brought with him a
teddy bear, money to pay the father, and a box of condoms.
Id.
Here, the district court did not err in refusing Gorycki’s re-
quested instruction on inducement or in denying his motion for
judgment of acquittal. Gorycki points out that some other circuits
have defined “induce” more narrowly than this Court,
see, e.g.,
United States v. Hite, 769 F.3d 1154, 1161, 1166–67 (D.C. Cir. 2014),
and asks that we reconsider
Murrell. But as a panel, we must apply
Murrell’s holding, regardless of whether we agree with it.
See
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (stat-
ing that “[a] prior panel’s holding is binding on all subsequent pan-
els” unless and until it is overruled by the Supreme Court or this
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 7 of 16

-- 7 of 16 --

8 Opinion of the Court 21-12823
Court sitting
en banc). And because the district court’s jury instruc-
tions were consistent with
Murrell, while Gorycki’s requested in-
struction was not, no error occurred.
See Mayweather, 991 F.3d at
1174–75.
Sufficient evidence also supports Gorycki’s conviction for at-
tempt under § 2422(b). Gorycki’s argument on this point largely
depends on his proposed definition of “inducement,” which we
have rejected. To the extent he argues there was insufficient evi-
dence even under
Murrell’s definition of “inducement,” we disa-
gree.
Murrell itself shows that Gorycki acted with the requisite in-
tent to cause the minor’s assent. As in
Murrell, Gorycki “commu-
nicated with an adult who he believed to be the father of a thirteen-
year-old girl and who presumably exercised influence over the
girl.” 368 F.3d at 1287. And his “agreement with the father, who
was acting as an agent or representative,” plainly involved “procur-
ing the daughter to engage in sexual activity.”
Id. Regardless of
whether the minor was a “willing participant,” as Gorycki asserts,
the evidence shows that he intended to cause the minor’s assent
by, among other things, telling the father to convey things to the
child to help her feel comfortable about the future sexual encoun-
ter with him.
Gorycki also took a substantial step towards causing the mi-
nor’s assent. He negotiated with the father the sexual activity he
would engage in with the child, arranged to meet the father and
child, sent a pornographic video to be shown to the child in
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 8 of 16

-- 8 of 16 --

21-12823 Opinion of the Court 9
anticipation of their meeting, and then traveled to the meeting lo-
cation ready to engage in sexual activity. Considered as a whole,
this evidence was sufficient to constitute a substantial step under
our precedent, even though, as Gorycki points out, he did not bring
with him a gift or item “intended to create comfort,” such as the
teddy bear in
Murrell.
See United States v. Farley, 607 F.3d 1294,
1334 (11th Cir. 2010) (defendant’s instructions to purported mother
of minor to “groom” her daughter for sexual contact with him, and
his trip to meet them, constituted a substantial step);
United States
v. Yost, 479 F.3d 815, 819–20 (11th Cir. 2007) (defendant’s sending
of sexually explicit messages and picture of his penis to purported
underage girl, and his arrangement to meet her, were objective acts
“strongly corroborat[ing]” culpability).
III.
Next, Gorycki argues that the district court erred in refusing
to apply a reduction for acceptance of responsibility at sentencing.
He contends that his case fits within the exception described in Ap-
plication Note 2 because he never contested the underlying facts,
just the application of § 2422(b) to his conduct.
We review a district court’s denial of an acceptance-of-re-
sponsibility adjustment under § 3E1.1 for clear error.
United States
v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005). Because the court
is in a unique position to evaluate whether a defendant has ac-
cepted responsibility for his acts, this determination is entitled to
great deference on review.
Id. A district court’s choice between
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 9 of 16

-- 9 of 16 --

10 Opinion of the Court 21-12823
two reasonable views of the record does not amount to clear error.
United States v. Smith, 821 F.3d 1293, 1302 (11th Cir. 2016).
The Guidelines provide for a two-level reduction in a de-
fendant’s offense level if the defendant clearly demonstrates ac-
ceptance of responsibility for his offense. U.S.S.G. § 3E1.1(a). In
determining whether a defendant qualifies for the reduction, a
court considers whether the defendant truthfully admitted the con-
duct supporting the offense and whether the defendant truthfully
admitted or did not falsely deny any additional relevant conduct.
Id. § 3E1.1 cmt. n.1. Ultimately, § 3E1.1 “is intended to reward
those defendants who affirmatively acknowledge their crimes and
express genuine remorse for the harm caused by their actions.”
United States v. Carroll, 6 F.3d 735, 740 (11th Cir. 1993).
Ordinarily, the adjustment does not apply when a defendant
puts the government to its burden of proof at trial by denying the
essential factual elements of guilt. U.S.S.G. § 3E1.1 cmt. n.2. But
in “rare situations,” a defendant may clearly demonstrate ac-
ceptance of responsibility even though he exercises his constitu-
tional right to a trial.
Id. According to Application Note 2, “This
may occur, for example, where a defendant goes to trial to assert
and preserve issues that do not relate to factual guilt (e.g., to make
a constitutional challenge to a statute or a challenge to the applica-
bility of a statute to his conduct).”
Id. In such a case, “a determi-
nation that a defendant has accepted responsibility will be based
primarily upon pre-trial statements and conduct.”
Id.
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 10 of 16

-- 10 of 16 --

21-12823 Opinion of the Court 11
Here, the district court reasonably concluded that Gorycki
did not clearly demonstrate acceptance of responsibility for his of-
fense. Of course, that Gorycki went to trial does not preclude a
reduction under § 3E1.1. And there is some support in the record
for the view that he went “to trial to assert and preserve issues that
do not relate to factual guilt,” as described in Application Note 2—
specifically to “challenge the applicability of a statute to his con-
duct” and whether he had the requisite intent based on his view of
the legal definition of “inducement.” Plus, his pretrial conduct—
admitting the conduct in a post-arrest interview and assisting in the
investigation by providing his cell phone password—was broadly
consistent with acceptance of responsibility.
Id.
Nevertheless, there is no clear error when the record sup-
ports the district court’s view of the facts.
See Smith, 821 F.3d at
1302. And the trial record here indicates that Gorycki’s defense
went beyond a narrow challenge to “the applicability of a statute
to his conduct.” He forced the government to meet its burden of
proof on all elements during the two-day trial. In doing so, he min-
imized the facts of his conduct, claiming that the case was a “setup”
and that he merely followed the lead of the fake “bad dad” and ac-
cepted an invitation to engage in sexual activity with a willing mi-
nor. Yet the messages themselves demonstrate that Gorycki took
a much more active role in the conversation. He reached out to
the officer; he steered the conversation to “doing things” with the
daughter and described the sexual activities he had in mind; he
asked for pictures; he pushed to meet up later that day; and he sent
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 11 of 16

-- 11 of 16 --

12 Opinion of the Court 21-12823
a pornographic video to be shown to the child. While Gorycki did
not deny the messages at trial, his attempt to minimize his own
conduct is not consistent with clearly accepting responsibility for
that conduct. Nor do we see any clear acknowledgement by
Gorycki at trial—or on appeal—that he met
Murrell’s definition of
“inducement,” even though he disagreed with that definition.
In addition, the district court also reasonably relied in part
on the absence of any clear statement from Gorycki accepting re-
sponsibility or expressing remorse.
See United States v. Wright,
133 F.3d 1412, 1413–14 (11th Cir. 1998) (affirming the denial of a
§ 3E1.1 based in part on the defendant’s lack of remorse at sentenc-
ing). The PSR noted that Gorycki declined to give any statement
accepting responsibility under advice of counsel. He also declined
to offer any statement along those lines at the sentencing hearing,
or to admit that he had the intent required by
Murrell.
For these reasons, we are not convinced that the district
court clearly erred in denying Gorycki a reduction for acceptance
of responsibility under § 3E1.1.
IV.
We ordinarily review the imposition of special conditions of
supervised release for an abuse of discretion.
United States v. Tay-
lor, 997 F.3d 1348, 1352 (11th Cir. 2021). But we review unpre-
served challenges for plain error.
United States v. Carpenter, 803
F.3d 1224, 1237 (11th Cir. 2015). Gorycki admits that plain error
review applies.
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 12 of 16

-- 12 of 16 --

21-12823 Opinion of the Court 13
For an error to be “plain” enough to warrant relief under
this standard, it must be “obvious and clear under current law.”
United States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012). In
other words, Gorycki “must show that some controlling author-
ity”—such as a precedential decision or the language of a statute or
rule—“clearly established that the court erred in imposing the chal-
lenged conditions.”
Carpenter, 803 F.3d at 1238–39.
In imposing special conditions of supervised release, “[t]he
district court must consider what conditions best accomplish the
purposes of sentencing.”
United States v. Moran, 573 F.3d 1132,
1139 (11th Cir. 2009). Any special conditions imposed must be
(1) reasonably related to the nature and circumstances of the of-
fense, the history and characteristics of the defendant, and the
needs for deterrence, protection of the public, and rehabilitation of
the defendant,
see 18 U.S.C. § 3553(a)(1), (a)(2)(B)–(D); (2) not
more restrictive than is reasonably necessary; and (3) consistent
with pertinent policy statements of the Sentencing Commission.
18 U.S.C. § 3583(d)(1)–(3). But a special condition need not “be
supported by each of the § 3553(a) factors” or “relate to the partic-
ular offense of conviction.”
Taylor, 997 F.3d at 1353.
Section § 5D1.3(d) of the Sentencing Guidelines outlines
various special conditions and the circumstances in which the Sen-
tencing Commission recommends their application. As relevant
here, that section recommends prohibiting new debt obligations
without prior approval “[i]f an installment schedule of payment of
restitution or a fine is imposed.” U.S.S.G. § 5D1.3(d)(2). Similarly,
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 13 of 16

-- 13 of 16 --

14 Opinion of the Court 21-12823
it recommends requiring access to financial information “[i]f the
court imposes an order of restitution, forfeiture, or notice to vic-
tims, or orders the defendant to pay a fine.”
Id. § 5D1.3(d)(3). In
order words, both conditions are warranted if the court imposed
some continuing payment obligation on the defendant. Neverthe-
less, § 5D1.3(d) states that these conditions “may otherwise be ap-
propriate in particular cases.”
Here, Gorycki has not shown that the district court plainly
erred in imposing the two financial special conditions. No statute,
rule, or precedential decision makes clear that application of these
conditions was erroneous in the circumstances here.
See Carpen-
ter, 803 F.3d at 1238–39. While the policy statement did not ex-
pressly recommend application of the conditions—since the court
did not impose any continuing payment obligation—it provides
that special conditions “may otherwise be appropriate in particular
cases.” So we look to the other statutory requirements for impos-
ing special conditions.
See 18 U.S.C. § 3583(d)(1), (2).
Gorycki presents reasonable grounds for concluding that the
special financial conditions are not reasonably related to the rele-
vant § 3553(a) factors in this case. But even if he could show that
the conditions were applied in error, that would not be enough to
warrant relief because under plain-error review, the error must be
“clear and obvious.” Any error was not. The conditions did not
need “to relate to the particular offense of conviction.”
Taylor, 997
F.3d at 1353. And the district court could have concluded that the
financial conditions were reasonably necessary to monitor and
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 14 of 16

-- 14 of 16 --

21-12823 Opinion of the Court 15
ensure Gorycki’s compliance with other conditions of his super-
vised release, such as refraining from using or possessing a com-
puter, smart phone, or similar device without his probation of-
ficer’s approval.1 The financial conditions may make it less likely
that Gorycki could obtain such a device without his probation of-
ficer’s knowledge.
Furthermore, because the conditions do not prohibit any
conduct so long as Gorycki receives his probation officer’s prior
permission, we cannot say that they are clearly more restrictive
than necessary.
Cf. United States v. Zinn, 321 F.3d 1084, 1093 (11th
Cir. 2003) (“[T]he restriction in this case is not overly broad in that
Appellant may still use the Internet for valid purposes by obtaining
his probation officer's prior permission.”). We also note that
Gorycki may later seek to modify the conditions of his supervised
release.
See 18 U.S.C. § 3583(e)(2).
In sum, Gorycki has not shown plain error in the imposition
of the special financial conditions.
V.
For the reasons stated above, we affirm Gorycki’s conviction
and sentence.
1 That the district court did not elaborate on its grounds for imposing the fi-
nancial conditions during the sentencing hearing does not, as Gorycki appears
to suggest, violate due process. Gorycki received notice of the condition and
had an opportunity to object, and nothing in the record indicates that the dis-
trict court relied on false information.
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 15 of 16

-- 15 of 16 --

16 Opinion of the Court 21-12823
AFFIRMED.
USCA11 Case: 21-12823 Date Filed: 11/04/2022 Page: 16 of 16

-- 16 of 16 --