Full Opinion

USCA11 Case: 25-14146 Document: 48-1 Date Filed: 10/20/2026 Page: 1 of 5 NOT FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-14146 Non-Argument Calendar ____________________ UNITED STATES OF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 USCA11 Case: 25-14146 Document: 48-1 Date Filed: 10/20/2026 Page: 2 of 5 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 USCA11 Case: 25-14146 Document: 48-1 Date Filed: 10/20/2026 Page: 3 of 5 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). USCA11 Case: 25-14146 Document: 48-1 Date Filed: 10/20/2026 Page: 4 of 5 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 USCA11 Case: 25-14146 Document: 48-1 Date Filed: 10/20/2026 Page: 5 of 5 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.