Full Opinion

USCA11 Case: 26-10313 Document: 51-1 Date Filed: 10/30/2026 Page: 1 of 12 NOT FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 26-10313 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OBDY JESSAEL MENCIA GUERRERO, a.k.a. Obdy J. Mencias, a.k.a. Obdy Mencia Guerrero, a.k.a. Obdy Jehzael, a.k.a. Obdy Guerrero, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 5:24-cr-00101-JA-PRL-1 ____________________ Before GRANT, LAGOA, and KIDD, Circuit Judges. PER CURIAM: USCA11 Case: 26-10313 Document: 51-1 Date Filed: 10/30/2026 Page: 2 of 12 2 Opinion of the Court 26-10313 Obdy Jessael Mencia Guerrero appeals his conviction for at- tempting to entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). He argues that the district court erred when it refused to instruct the jury on entrapment because the under- cover officer’s statements in their text and phone conversations amounted to more than a scintilla of evidence of government in- ducement. After careful review of the record, we conclude that Guer- rero did not produce sufficient evidence of government induce- ment to warrant an entrapment instruction and affirm. I. FACTUAL AND PROCEDURAL HISTORY In July 2024, Deputy Regan Thoresen of the Marion County Sheriff’s Office served as an undercover decoy in an operation tar- geting adults who use online platforms to solicit minors. She cre- ated a profile on Badoo, an adult-only dating application, under the name “Avery,” and she used photographs of herself at age 13. Be- cause Badoo prohibits minors, the profile listed Avery as over 18. As Avery, Deputy Thoresen would “swipe right” on other users’ profiles, wait for them to message her, move the conversation to text messaging, and disclose that Avery was 14. If the user raised sexual activity, she would then arrange a meeting. On July 14, 2024, Avery matched with Guerrero on Badoo, and Guerrero messaged her first, asking for her phone number. By text, Guerrero told Avery he was 37; she then said she was 14 and asked whether that was okay with him, and he answered, “Yes.” He then asked her out, and when she asked what he wanted to do, USCA11 Case: 26-10313 Document: 51-1 Date Filed: 10/30/2026 Page: 3 of 12 26-10313 Opinion of the Court 3 he said, “You can come to my house tonight, and tomorrow we can go eat.” Avery asked what he wanted to do at his house, and he said they could “get to know each other and see what we do,” and added that “we can do everything you like.” Guerrero then called Avery and suggested they drink beer and watch television. Avery asked, “Okay, is that all?” and said the plan “sounds kind of boring.” Guerrero suggested going to eat the next day and, after Avery remained noncommittal, told her it was “okay” if she did not want to come over that night. When texting resumed, Avery told Guerrero she would have to “sneak out,” and she asked where she would sleep and what he wanted to do since she would be at his house until the next day. Guerrero answered, “Of course, if you want we can do it.” When Avery asked, “Do what?,” he wrote, “Look, I want to know you and I’m going to respect you. I would like to have a girl as pretty as you.” Avery asked whether they were “just going to drink beer and watch TV the whole night.” Guerrero answered, “Yeah,” and added that it was too late to buy beer; they instead agreed to meet the next afternoon. Avery did not send her address the next day. Eleven days later, Guerrero texted Avery “Y,” and she did not respond. Two days after that, on July 27, he wrote again, say- ing he would like to meet her “[t]onight if you can,” and asked whether she would come stay with him at his house. Avery asked what they would do. Guerrero suggested they could talk, and Avery replied that she did not want to go all the way to Daytona USCA11 Case: 26-10313 Document: 51-1 Date Filed: 10/30/2026 Page: 4 of 12 4 Opinion of the Court 26-10313 “just to talk” because that was “lame.” Guerrero responded, “We can have a good time, and we can have sex.” Avery replied, “Okay that would be fine,” and asked when. Guerrero then asked, “Would you like to have sex with me?” Avery said, “Sure, if you want to,” and Guerrero followed up with, “Yes.” When Avery asked whether he was still okay with her being 14 and not “super experienced,” he answered, “It’s okay.” Guerrero then requested assurance that Avery would not get him into trouble, and he asked whether she had ever had sex with someone older; she answered, “Once.” They agreed that he would pick her up at a gas station near her house, and on a second call, Guerrero told Avery, “I am scared because you’re 14, you know?” When Avery later texted that she was “not trying to get pregnant,” he responded, “Don’t worry” and “We’ll do it with pro- tection.” Guerrero then drove to the gas station, where the depu- ties arrested him. A grand jury indicted Guerrero for attempted enticement of a minor (Count One) and illegal reentry (Count Two). The district court severed the counts, and Guerrero proceeded to trial on Count One. At the charge conference, he requested the pattern entrapment instruction, and both parties agreed that United States v. Mayweather, 991 F.3d 1163 (11th Cir. 2021), supplied the govern- ing standard. Defense counsel argued that Avery’s repeated ques- tions about what they would do, and her statements that Guer- rero’s suggestions were boring, signaled that he needed to “esca- late.” The government responded that Avery never raised sex and USCA11 Case: 26-10313 Document: 51-1 Date Filed: 10/30/2026 Page: 5 of 12 26-10313 Opinion of the Court 5 that Guerrero alone introduced it after a two-week lapse in which Avery did not contact him. The district court declined to give the instruction. It ex- plained that the government had merely created an opportunity rather than designed a crime, that Avery did not “initiate anything” but instead “puts him off,” and that her statement that watching television would be boring was “not the government manufactur- ing a crime.” The jury found Guerrero guilty. Guerrero later pleaded guilty to Count Two, and the district court sentenced him to concurrent terms of 121 and 24 months’ imprisonment. Guer- rero timely appealed. 1 II. STANDARD OF REVIEW We review de novo whether a defendant produced sufficient evidence to warrant an entrapment instruction. See United States v. Dixon, 901 F.3d 1322, 1346–47 (11th Cir. 2018); Mayweather, 991 F.3d at 1174 n.13. 2 A district court’s refusal to give a requested in- struction is reversible error only if the instruction “(1) is correct, (2) is not substantially covered by other instructions which were deliv- ered, and (3) deals with some point so ‘vital’ that the failure to give the requested instruction seriously impaired the defendant’s ability 1 Guerrero does not challenge his conviction or sentence on Count Two. 2 Guerrero contends that we review for abuse of discretion. While some of our earlier decisions purported to review this question for abuse of discretion, see, e.g., United States v. Chirinos, 112 F.3d 1089, 1101 (11th Cir. 1997), we have since clarified that the correct standard is de novo. See Dixon, 901 F.3d at 1346– 47; Mayweather, 991 F.3d at 1174 n.13. USCA11 Case: 26-10313 Document: 51-1 Date Filed: 10/30/2026 Page: 6 of 12 6 Opinion of the Court 26-10313 to defend.” Mayweather, 991 F.3d at 1175 (citation omitted). A de- fendant is entitled to instructions on a theory of defense only where there is “any foundation in the evidence” for it, United States v. Ryan, 289 F.3d 1339, 1344 (11th Cir. 2002) (quotation omitted), so the dispute here turns on whether Guerrero laid such a foundation. III. ANALYSIS A. Entrapment and the Defendant’s Burden of Production The entrapment defense rests on a distinction between the government’s detection of crime and its creation of crime. “Arti- fice and stratagem may be employed to catch those engaged in criminal enterprises,” Sorrells v. United States, 287 U.S. 435, 441 (1932), but “Government agents may not originate a criminal de- sign, implant in an innocent person’s mind the disposition to com- mit a criminal act, and then induce commission of the crime so that the Government may prosecute.” Jacobson v. United States, 503 U.S. 540, 548 (1992) (citation omitted). The line falls “between the trap for the unwary innocent and the trap for the unwary criminal.” Sherman v. United States, 356 U.S. 369, 372 (1958). Entrapment has “two related elements: government induce- ment of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct.” Mathews v. United States, 485 U.S. 58, 63 (1988). The defendant bears the initial bur- den of producing sufficient evidence of government inducement, and in deciding whether he has met it, “we look only at whether there was sufficient evidence produced to raise the issue of govern- ment inducement,” accepting the testimony most favorable to the USCA11 Case: 26-10313 Document: 51-1 Date Filed: 10/30/2026 Page: 7 of 12 26-10313 Opinion of the Court 7 defendant. Mayweather, 991 F.3d at 1176. The defendant “must merely come forward with some evidence, more than a scintilla, that government agents induced him to commit the offense.” Id. at 1176–77 (quotation marks omitted). If the defendant does, the government must prove predisposition to the jury beyond a rea- sonable doubt. See id. at 1176. The burden on the defendant is light, but it requires more than evidence that the government presented the opportunity, however “attractive” that opportunity may be. United States v. Sis- trunk, 622 F.3d 1328, 1334 (11th Cir. 2010). Accordingly, “evidence of the government’s mere suggestion of a crime or initiation of con- tact is not enough.” United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995). Inducement “requires an element of persuasion or mild coercion,” which may be shown by evidence that the defendant “had not favorably received the government plan, and the govern- ment had to ‘push it’ on him, or that several attempts at setting up an illicit deal had failed and on at least one occasion he had directly refused to participate.” Mayweather, 991 F.3d at 1177 (quoting Sis- trunk, 622 F.3d at 1333). In short, inducement is “an opportunity plus some added government behavior that aims to pressure, ma- nipulate, or coerce the defendant into criminal activity.” Id. The focus is the government’s conduct. Evidence that the defendant eagerly agreed to the crime or declined an opportunity to back out goes to predisposition rather than inducement. See id. at 1180 n.20. However, whether the government had to overcome USCA11 Case: 26-10313 Document: 51-1 Date Filed: 10/30/2026 Page: 8 of 12 8 Opinion of the Court 26-10313 a defendant’s hesitation does remain a part of the inducement in- quiry because the record must contain some evidence of govern- ment pressure or manipulation. See id. at 1177–78. B. Guerrero Did Not Produce Sufficient Evidence of Inducement Reviewing the record de novo, we agree with the district court. The content of the messages and calls was undisputed and admitted without objection, so the only question is whether that evidence, read in Guerrero’s favor, shows inducement. It does not. The July 14 conversation. Guerrero contends that Avery “urge[d]” him “to engage in a sexually explicit conversation” by re- peatedly asking what they would do and by calling his suggestions boring. Avery’s questions did come early and often, and Guerrero’s suggestive statements followed her description of his suggested plans as “boring.” A question that asks a defendant to state his own intentions, however, does not pressure him to form them. Avery never proposed sex or any particular activity; she asked what Guer- rero wanted, and he answered. Moreover, when she asked directly whether they would just drink beer and watch television all night, he said yes. The government also did not push a plan on a reluctant de- fendant. See Mayweather, 991 F.3d at 1177. Guerrero initiated the contact and invited Avery to his house shortly after learning she was 14. There was no hesitation for the government to overcome, and Avery did not press the invitation; she instead put it off, and when the next day came, she did not respond. USCA11 Case: 26-10313 Document: 51-1 Date Filed: 10/30/2026 Page: 9 of 12 26-10313 Opinion of the Court 9 The contrast with Mayweather is instructive. There, the in- formant met one defendant’s hesitation with repeated calls, prom- ises to pay his traffic fines and other debts, and assurances that the crime would be quick and safe, which was pressure aimed at secur- ing the defendant’s participation in a crime the informant had pro- posed. See 991 F.3d at 1177–78. Here, Avery proposed no crime, made no promises, and never initiated contact. The July 27 conversation. Guerrero renewed the conver- sation on his own after Avery had ignored his earlier message, and he asked her to stay at his house that night. When she said that coming to Daytona “just to talk” was “lame,” he responded that “we can have sex.” Avery’s statement declined one activity; it did not propose another. Guerrero was the first to mention sex. Avery merely acquiesced, and when Guerrero then asked whether she wanted to have sex with him, her answer—“Sure, if you want to”— placed the decision back on him. Acquiescence to a defendant’s proposal is not pressure to make the proposal. Guerrero also points to Avery’s later assurances that she would not tell anyone, that her mother did not pay attention to what she did, and that she was not trying to get pregnant. Taken as true, most of these statements simply answered Guerrero’s own questions. Avery did raise the subject of pregnancy on her own, but she did so only after Guerrero had proposed sex, confirmed he wanted it, and arranged to pick her up. A question about the details of a plan the defendant has already made does not induce the de- USCA11 Case: 26-10313 Document: 51-1 Date Filed: 10/30/2026 Page: 10 of 12 10 Opinion of the Court 26-10313 fendant to make it. Avery’s statements may have made the oppor- tunity easier to take, but an easy or attractive opportunity is not inducement. See Sistrunk, 622 F.3d at 1334. To the extent Guerrero relies on the deception inherent in Avery’s persona, that deception is the “artifice and stratagem” the law permits; it supplies the opportunity and not the “plus.” See Sor- rells, 287 U.S. at 441; Mayweather, 991 F.3d at 1177. Guerrero thus stands where the two Mayweather defendants who were not enti- tled to the instruction stood, as there was no evidence of pressure or manipulation and “simply no ‘plus’” beyond the opportunity to commit the crime. 991 F.3d at 1179–80. The portrayal of Avery. Guerrero next argues that the gov- ernment portrayed Avery as a “sexually precocious” teenager in- terested only in sex who had “enjoyed” sex with an older man. The record does not support that characterization, even if read in his favor. Avery never mentioned sex before Guerrero did, and she told him she was “kind of new to this” and “not super experienced.” Her answer that she had been with someone older “[o]nce” came only in response to Guerrero’s question after he had already pro- posed sex. Nothing in that one-word answer supports the infer- ence that she enjoyed the experience, and in any event, the state- ment made after Guerrero proposed sex could not have pressured him into proposing it. The out-of-circuit decisions Guerrero cites do not suggest otherwise. The Eighth Circuit has listed a minor’s sexually preco- cious portrayal as one relevant factor, see United States v. Zupnik, USCA11 Case: 26-10313 Document: 51-1 Date Filed: 10/30/2026 Page: 11 of 12 26-10313 Opinion of the Court 11 989 F.3d 649, 655 (8th Cir. 2021), but it has held it insufficient where the defendant initiated the contact, initiated most of the sexual dis- cussions, and proposed the encounter, see United States v. Young, 613 F.3d 735, 747 (8th Cir. 2010). Further, in United States v. Pérez- Rodríguez, 13 F.4th 1, 20 (1st Cir. 2021), the agent made adult sexual activity contingent on the defendant’s participation in sexual activ- ity with a minor and repeatedly suggested the encounter would benefit the child. Avery said nothing about harm or benefit, and Guerrero’s own words noting that he was “scared because [Avery was] 14” show that he understood what he proposed. Guerrero’s remaining arguments. Guerrero contends that the government asks us to weigh the evidence and draw inferences against him. We have not done so. We have instead accepted every statement as Guerrero presents it and drawn every reasona- ble inference in his favor. Ultimately, the evidence—taken on his own terms—shows an opportunity and nothing more. Guerrero also argues that the district court conflated inducement with pre- disposition. Although the district court remarked that the opera- tion sought people “predisposed” to the offense and that Guerrero did not appear to have been “hunting” for minors, its ruling rested on the absence of inducement. The district court explained that Avery “doesn’t initiate anything” and her statements were “not the government manufacturing a crime.” In any event, our review is de novo, and we independently conclude that Guerrero’s evidence of inducement was insufficient. USCA11 Case: 26-10313 Document: 51-1 Date Filed: 10/30/2026 Page: 12 of 12 12 Opinion of the Court 26-10313 Because Guerrero did not produce more than a scintilla of evidence of government inducement, we conclude that the re- quested instruction lacked an evidentiary foundation, and we need not reach the remaining requirements for reversible error. See Mayweather, 991 F.3d at 1175. We thus conclude that the district court did not err in declining to instruct the jury on entrapment. IV. CONCLUSION For the reasons stated, we affirm Guerrero’s conviction. AFFIRMED.