United States v. Miguel Hernandez Gutierrez
CourtCourt of Appeals for the Eleventh Circuit
Date FiledOctober 20, 2026
Docket25-14146
StatusUnpublished
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Full Opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 25-14146
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL HERNANDEZ GUTIERREZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:25-cr-20182-JB-1
____________________
Before ROSENBAUM, GRANT, and KIDD, Circuit Judges.
PER CURIAM:
A grand jury returned an indictment charging Miguel Her-
nandez Gutierrez with attempted receipt of child pornography, in
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2 Opinion of the Court 25-14146
violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and attempted coer-
cion and enticement of a minor to engage in sexual activity, in vio-
lation of 18 U.S.C. § 2422(b). A jury found Hernandez guilty of both
counts, and the district court sentenced him to 120 months of im-
prisonment. Hernandez now appeals, challenging the sufficiency of
the indictment as to the § 2422(b) offense.
Generally, “the sufficiency of an indictment is a legal ques-
tion that we review de novo.” United States v. Chalker, 966 F.3d
1177, 1190 (11th Cir. 2020) (citation modified). However, because
Hernandez failed to challenge the indictment’s sufficiency below,
we will review his arguments on appeal only for plain error. United
States v. Reed, 941 F.3d 1018, 1020 (11th Cir. 2019). To establish
plain error, Hernandez must show that “(1) an error occurred;
(2) the error was plain; (3) it affected his substantial rights; and (4) it
seriously affected the fairness of the judicial proceedings.” United
States v. Ramirez-Flores, 743 F.3d 816, 822 (11th Cir. 2014). We con-
clude that Hernandez cannot meet this burden.
“An indictment is sufficient when it (1) presents the essential
elements of the charged offense, (2) notifies the accused of the
charges to be defended against, and (3) enables the accused to rely
upon a judgment under the indictment as a bar against double jeop-
ardy for any subsequent prosecution for the same offense.” United
States v. Wayerski, 624 F.3d 1342, 1349 (11th Cir. 2010) (citation mod-
ified). “These requirements satisfy the Sixth Amendment’s guaran-
tee of notice to the accused of the nature and the cause of the ac-
cusation, and the Fifth Amendment’s assurance that a grand jury
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25-14146 Opinion of the Court 3
will return an indictment only when it finds probable cause for all
elements of the crime.” Id.
In this case, the indictment alleged that Hernandez, “using a
facility of interstate and foreign commerce, did knowingly attempt
to persuade, induce, entice, and coerce an individual who had not
attained the age of eighteen years, to engage in sexual activity for
which a person can be charged with a criminal offense.” This state-
ment tracks the language of § 2422(b) and includes all of the of-
fense’s essential elements. See 18 U.S.C. § 2422(b). This is all that is
required under our precedent to apprise a defendant of the charges
against him. See Wayerski, 624 F.3d at 1349–50; see also United States
v. Doak, 47 F.4th 1340, 1351–52 (11th Cir. 2022) (“Simplicity is ac-
ceptable; an indictment is constitutionally sufficient when it tracks
the wording of the statute, as long as the language sets forth the
essential elements of the crime.” (citation modified)).
Nonetheless, Hernandez argues that the indictment was in-
sufficient because it merely alleged that he attempted to entice a
minor to engage in criminal sexual activity rather than identifying
the specific criminal offense underlying the charge. However,
§ 2422(b) requires only that “the defendant attempted to persuade
a minor to engage in sexual activity that would have been charge-
able as a crime if it had been completed,” not that the defendant
attempted to persuade the minor to commit activity constituting a
specific criminal offense. United States v. Jockisch, 857 F.3d 1122,
1132 (11th Cir. 2017) (citation modified).
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4 Opinion of the Court 25-14146
As we have explained, “the particular sex act that [a defend-
ant] might have ultimately attempted to induce” is not an element
of the offense that must be proven by the government. Id. at 1131.
Rather, it is “a means of satisfying [an] element” of the crime—that
is, whether the defendant “attempt[ed] to persuade a minor to en-
gage in an unlawful sexual act.” Id. And, “[a]s long as the jury could
unanimously conclude that [a defendant] was attempting to per-
suade [a minor] to perform some unlawful sex act . . . [it] could
properly find [a defendant] guilty of violating § 2422(b).” Id.; cf.
Doak, 47 F.4th at 1351–53 (explaining that, while “it is best practice
to include the statutes criminalizing the sexual activity that the de-
fendant planned to inflict on the transported child,” an indictment
charging violations of 18 U.S.C. § 2423(a) was legally sufficient
even where it omitted the criminal sexual offenses underpinning
those charges).
As such, we can discern no error in the indictment’s failure
to include the specific criminal sexual offense predicating the
§ 2422(b) charge. And even if we were to assume error, Hernandez
cannot establish that such an error was plain, as he has not identi-
fied controlling authority clearly resolving the issue presented by
this appeal. See United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir.
2015) (“There can be no plain error where there is no precedent
from the Supreme Court or this Court directly resolving it.” (cita-
tion modified)). While Hernandez argues that Jockisch stands for
the proposition that the indictment needed to contain some detail
as to the underlying offense, that case merely held that the jury was
required to agree that the defendant’s conduct would have violated
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25-14146 Opinion of the Court 5
at least one of the three predicate offenses listed in the indictment.
Jockisch, 857 F.3d at 1133. Jockisch did not establish a requirement
that an indictment list any predicate offenses or mandate that a jury
agree on which predicate offense a defendant violated in order to
return a guilty verdict. See id. at 1131, 1133.
We therefore conclude that Hernandez cannot show error,
plain or otherwise, in the sufficiency of his indictment and need not
address whether any alleged error prejudiced Hernandez.
The district court’s judgment is AFFIRMED.