Opinion
23-3089
12-13-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JULIAN MURIERA, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Submitted December 10, 2024
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:19CR105-001 Damon R. Leichty, Judge.
Before DIANE S. SYKES, Chief Judge JOHN Z. LEE, Circuit Judge DORIS L. PRYOR, Circuit Judge
ORDER
Julian Muriera was convicted of attempted sexual exploitation of a minor and sentenced to 192 months' imprisonment and 5 years' supervised release. He appealed, but his appointed counsel asserts that the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel's brief explains the nature of the case and the issues that an appeal of this kind would involve. Because the analysis appears thorough, and Muriera has not responded to counsel's motion, see CIR. R. 51(b), we limit our review to the subjects that counsel raises. United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). We grant the motion and dismiss the appeal.
Muriera was arrested in 2019 after communicating online repeatedly with an undercover FBI agent posing as a stepfather who had advertised his 14-year-old stepdaughter online for sexual encounters. In the initial conversation, Muriera discussed trading child pornography with the stepfather. Later, over two video calls, Muriera asked to watch the stepfather and the girl have sex, and he explained to the girl (also portrayed by an undercover FBI agent) the sex acts that he wanted her to perform. The video calls ended before any sexual acts occurred. Muriera was charged soon thereafter with attempted sexual exploitation of a minor. 18 U.S.C. § 2251(a), (e).
Muriera pleaded not guilty and proceeded to trial. During a two-day trial, the jury first heard from the FBI agent who posed as the stepfather. The agent testified that he used Kik, a social network, to investigate adults who express a sexual interest in children. He sent a message to users on Kik, indicating that he was a stepfather who is sexually active with his 14-year-old stepdaughter and that he was not looking for individuals interested in role-play or fantasy. The agent also testified that he told Muriera that he had sex with his stepdaughter, to which Muriera responded by saying "super fucking hot." The agent added that he sent Muriera a photo of the stepdaughter in a bikini; Muriera responded by saying "she has a really nice ass for a 14-year-old." Muriera also testified, stating that his conversations with the agent were fantasy scenarios and that he did not believe the girl to be 14 years old. On cross-examination, though, Muriera acknowledged that he did not use the term "role-play" or discuss any "fantasy" in his conversations with the agent. After the close of trial, the jury found Muriera guilty of attempted sexual exploitation of a minor.
The probation office prepared a presentence investigation report (PSR) recounting the offense conduct and Muriera's criminal history. By statute, Muriera faced 15 to 30 years in prison, 18 U.S.C. § 2251(a), (e), and 5 years to life on supervised release, 18 U.S.C. § 3583(k). The probation office calculated a guidelines range of 188 to 235 months in prison (based on a total offense level of 36 and a criminal history category of I). U.S.S.G. §§ 2G2.1, 5A. Neither side objected to these calculations. In his sentencing memorandum, Muriera requested the statutory minimum sentence of 180 months' imprisonment, whereas the government sought a 200-month sentence to reflect the seriousness of the offense and the need to protect the public.
At the sentencing hearing, the district judge confirmed that there were no objections to the PSR and adopted it in full. The judge then heard the parties' arguments and weighed the sentencing factors under 18 U.S.C. § 3553(a). He considered mitigating factors, namely Muriera's lack of a criminal history and Muriera's good conduct on pretrial release. As for aggravating factors, the judge discussed Muriera's failure to take responsibility by blaming others for his conduct. The judge sentenced him to 192 months' imprisonment and 5 years' supervised release.
In her Anders brief, counsel first considers but rightly rejects arguing that Muriera could raise a nonfrivolous challenge to the judge's ruling on one of the government's pretrial motions in limine. The government had sought to preclude Muriera from raising defenses based on factual impossibility-an argument that it would have been impossible for Muriera to exploit a minor here because there was no actual minor in the case. The judge granted the government's motion in part, barring Muriera from raising a factual-impossibility argument (but permitting Muriera to argue that he lacked the specific intent to commit the offense of sexual exploitation). This was correct: Factual impossibility is not a defense to an attempt charge, see United States v. Cote, 504 F.3d 682, 687 (7th Cir. 2007), and directing the sexual activities of a minor through an adult intermediary is sufficient to show a violation of § 2251(a), see United States v. Hartleroad, 73 F.4th 493, 497-98 (7th Cir. 2023).
Counsel next considers whether Muriera could challenge the sufficiency of the evidence in the government's case and properly determines that he could not. The government provided ample evidence to show that Muriera used interstate commerce to take a substantial step toward sexually exploiting a minor. See 18 U.S.C. § 2251(a), (e); Hartleroad, 73 F.4th at 499. The government presented evidence, for instance, that Muriera communicated with the FBI agent through the internet and his cell phone (both instrumentalities of interstate commerce, see United States v. Kawleski, 108 F.4th 592, 596 (7th Cir. 2024); United States v. Baird, 70 F.4th 390, 392-93 (7th Cir. 2023)); that Muriera was aware of the child's purported age; that he talked extensively with the "stepfather" about the child's sexual experience; and that he discussed the sexual acts that he wanted the child to perform through a video recording. From these communications, a reasonable jury could infer that Muriera intended to exploit the child to engage in sexual conduct. See Hartleroad, 73 F.4th at 499.
We also agree with counsel that Muriera could not plausibly challenge his within-guidelines sentence on any procedural or substantive grounds. The judge properly calculated Muriera's base-offense level at 32, see U.S.S.G. § 2G2.1(a), and correctly added two levels because of the minor's age, id. § 2G2.1(b)(1)(B), and an additional two levels because the offense involved the use of an interactive computer service, id. § 2G2.1(b)(6). And the judge adequately justified the 192-month sentence in terms of the § 3553(a) sentencing factors. See United States v. Jerry, 55 F.4th 1124, 1130 (7th Cir. 2022). The judge referred to the seriousness of the offense (noting the purported child's youth and Muriera's intent to sexually exploit her); the need to protect the public (given that Muriera had not shown any appreciation for the potential damage that his offense may have caused); and the need for deterrence (given the gravity of the offense). 18 U.S.C. § 3553(a)(2)(A), (B), (C).
Finally, counsel appropriately rejects any challenge to the length and conditions of Muriera's supervised release. Muriera waived his right to challenge the conditions of his supervised release when he confirmed at his sentencing hearing that he had no objections to the PSR, which contained the proposed conditions of his supervision. See United States v. Smith, 906 F.3d 645, 650 (7th Cir. 2018). The term of supervision is also within the statutory limit, 18 U.S.C. § 3583(k), and the judge's adequate justification of Muriera's prison term extends to the term of supervised release, see United States v. Bloch, 825 F.3d 862, 869 (7th Cir. 2016).
Therefore, we GRANT counsel's motion to withdraw and DISMISS the appeal.