US v. Elboghdady: One evening in February 2020 West Virginia State Trooper, posing undercover online as a single mother of two daughters (11 and 13 years old), posted an ad online “in town for the weekend looking for fun for the family” with “little cubs” who “love to play.” The intent was to “attract child predators that wanted to interact sexually with young children” without being too obvious. Elboghdady, an Egyptian native with a limited facility with English, responded. Over the next day, they conversed and, eventually, Elboghdady agreed to come to Huntington, West Virginia, to meet the undercover and the children. In the process, he repeated expressed his interest in the undercover (who explained that she was gay), while also appearing to be interested in the daughters, albeit in language that was not particularly clear. Upon arrival in Huntington and a meeting with the undercover, Elboghdady was arrested and charged with crossing state lines with the intent to engage in criminal sexual activity.
At trial, Elboghdady proposed a jury instruction on entrapment. The district court rejected that request, agreeing with the Government that there was no evidence of Government inducement. Elboghdady was convicted at trial. At sentencing, the district court imposed an 8-level enhancement because the offense involved a minor who was under 12 years of age (as the PSR recommended – Elboghdady did not object), concluding that the enhancement applied even though the evidence was not strong “as to the 11-year-old’s being a target of the defendant’s travel.”
On appeal, a divided Fourth Circuit affirmed Elboghdady’s conviction, but vacated his sentence. As to his conviction, the court agreed, if reluctantly, that the district court had correctly refused to given an entrapment instruction. Here there was no Government overreach and the fact that Elboghdady was repeatedly offered access to the daughters was not enough. Nor was his “sustained interest in the fictitious mother” a contributing factor. Regardless, the court stated that “although our precedent compels affirmance, we feel impelled to speak to the nature of the evidence before the court,” noting that a “plain reading” of the interactions with the undercover officer “exposes his confusion.” While there was no overreach the undercover officer’s “pursuit to make sure ‘somebody is not out there preying on children when [she] possibly could have done something about it’ should not make not make clear evidence of someone’s confusion obsolete.” Furthermore, the “entrapment standard does not act as a free pass for the government to ignore the context of the interactions they engage in during undercover operations.”
As to Elboghdady’s sentence, however, the court found it was procedurally unreasonable, even though Elboghdady had only challenged its substantive reasonableness. Relying on the Supreme Court’s language in Gall that courts of appeals must “first ensure” there was no procedural error at sentencing, the court reviewed the district court’s application of the 8-level enhancement and found that it was erroneous, concluding that the district court’s findings did not show, by a preponderance of the evidence, that Elboghdady had travelled with intent to engage in a sex act with a minor under 12 years of age. As a result, the court vacated Elboghdady’s sentence without addressing whether the ultimate 120-month sentence imposed (a downward variance) was substantively unreasonable.
Judge Quattlebaum, while concurring with regard to the entrapment instruction (although he did respond to the comments about the conduct in this case), dissented on the court’s resolution of the sentencing issue, primarily for vacating the sentence on the basis of an issue not raised by Elboghdady either in the appeal or in the district court. He argued that Gall merely held that, where procedural issues are raised, they should be addressed before substantive issues, not that the court “must conduct an Anders-like review for procedural issues, whether raised or abandoned.” He also argued that, in doing so, the court erred by not applying a plain error standard of review.
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