United States v. Makel Elboghdady – CourtListener.com

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4194
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MAKEL ELBOGHDADY,
Defendant – Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Huntington. Robert C. Chambers, District Judge. (3:20-cr-00069-1)
Argued: January 24, 2024                                     Decided: September 9, 2024
Before GREGORY, QUATTLEBAUM, and BENJAMIN, Circuit Judges.
Affirmed in part, vacated in part, and remanded with instructions by published opinion.
Judge Benjamin wrote the opinion, in which Judge Gregory joined. Judge Quattlebaum
wrote a separate opinion concurring in part and dissenting in part.
ARGUED: Edward M. Robinson, EDWARD M. ROBINSON, A PROFESSIONAL
CORP., Torrance, California, for Appellant. Jennifer Rada Herrald, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF:
William S. Thompson, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee.
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DEANDREA GIST BENJAMIN, Circuit Judge:
Makel Elboghdady was convicted of traveling in interstate commerce for the
purpose of engaging in illicit sexual conduct in violation of 

18 USC§ 2423

(b) and (e).
The district court refused to allow an entrapment defense and sentenced him to 120 months’
imprisonment. Elboghdady now appeals, arguing that he was entitled to an entrapment
defense and that his sentence is nevertheless unreasonable. We affirm the district court’s
entrapment decision but vacate and remand Elboghdady’s sentence.
I.
A.
At 7:19 p.m. on February 27, 2020, West Virginia State Police Trooper Jillian
Yeager (the undercover officer, or “UC”) posted an advertisement titled, “Young momma
bear in town for weekend looking for fun for the family,” to the Huntington, West Virginia,
Craigslist page. J.A. 340. The UC was working undercover with the police department
and a Federal Bureau of Investigation task force on Child Exploitation and Human
Trafficking. The body of her ad read, “Single mom in town looking for family friendly
activities. My little cubs love to play.” J.A. 340. She chose to word the ad this way in an
effort “to not specifically come out and state the purpose of the ad.” J.A. 69. The purpose
was to attract child predators that wanted to interact sexually with young children.
Elboghdady, an Egyptian-born permanent resident of the United States, responded to the
ad the same night it was posted; he sent an email to the UC that read, “I’m interesting,”
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and attached a photo of himself. J.A. 341–42. Elboghdady is not a native English speaker
and struggles with the language.
The two began an exchange that lasted around a day. It included emails, text
messages, phone calls, and ultimately led to Elboghdady driving from Columbus, Ohio, to
Huntington, West Virginia, for a face-to-face meet up with the UC (collectively, “the
timeline”). The timeline is captured in the record in its entirety. For ease of reference, we
provide a general synopsis of events by reprinting portions of the timeline.
Shortly after responding to the ad, Elboghdady gave his phone number to the UC,
and the conversation moved to text messages. Elboghdady asked for “Pic plz . . . And your
girls.” 1 J.A. 364. 2 The UC sent a photo of a fictitious mother standing with two young
girls, and the following text conservation occurred:
Elboghdady: Wow nice
UC: now a pic of u so I know its u
Elboghdady: Haha I’m real I don’t like play games
UC: me either but you cant be 2 careful
Elboghdady: Right
UC: So what are u looking for?
Elboghdady: Make friend long term . . . U . . . Are u busy now . . . Hello
UC: I dont think we are looking for the same thing. Sorry
Elboghdady: Ok what u looking for . . . Tell me
UC: I enjoy watching my girls have a good time . . . 3
Elboghdady: Wow i like that . . . I never watch . . . I’m interesting
1
Each ellipsis that appears in quoted conversation is added by the court and
represents the beginning of a separate text message.
2
The text message evidence submitted before the court is a transcript of the UC’s
text message record. Accordingly, all text messages identified as “SMS Incoming” in the
record are reprinted in this opinion as coming from “Elboghdady,” and the messages
identified in the record as “SMS Outgoing” appear in this opinion as coming from “UC.”
3
This ellipsis was included in the original text message.
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UC: U dont watch? Do you prefer to participate?
Elboghdady: Sure
UC: I like to watch
Elboghdady: U like me . . . I don’t enjoy with you
UC: Ur cute and all but I’m into girls. I just like to watch
Elboghdady: U watch no enjoy . . . Right
UC: Yes. I only watch
Elboghdady: U will enjoy with girls . . . Right . . . Ah okay . . . Just one time
or we could be friends
UC: I would enjoy watching you with my girls. Would you enjoy that?
Elboghdady: Yes
UC: If it goes well it could be more than once. My girls would have to like
it
Elboghdady: Sounds good . . . When u like meet up?
J.A. 364–65.
The UC then laid out the rules: “You have to be clean and disease free, no rough
play or anal and you have to bring protection so you dont get them pregnant.” J.A. 365.
Elboghdady agreed. Then, for the first time, the UC revealed her fictitious daughters’ ages:
11 and 13 years old. J.A. 366. Elboghdady asked the UC to “plz send me more pic,” and
the UC sent two photos that each showed a young girl. 

Proof of identity.

 By this time, it was nearly
midnight and the two agreed to pick the conversation up in the morning. The next day,
Elboghdady renewed his interest in the mother:
Elboghdady: Yesterday I said I want pic for u . . . And u go sleep . . .
UC: I sent you pics
Elboghdady: For u . . . Yea the girls . . . U sent
UC: Why u wanna see me? Lol
Elboghdady: Ok tell me when u like we will meet up? . . . Just make sure u
are (winking eye emoji).
J.A. 367.
The UC sent a photo of herself but clarified that she was “not part of the deal.” J.A.
368. Elboghdady responded, “I like to see your eyes . . . Right,” and then the two began
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arranging a face-to-face meet up. 

Proof of identity.

 They agreed to meet in Huntington, West Virginia,
around 7:00 p.m. that same night. J.A. 369. The UC asked Elboghdady to bring gifts for
her children, and he again reiterated his interest in the fictitious mother:
UC: The girls appreciate gifts too
Elboghdady: Haha really what the gifts
UC: The 11 y/o likes stuffed animals and the 13y/o likes candy
Elboghdady: I like see you enjoy with girls
UC: I might need something for that to happen
Elboghdady: Need what?
UC: Well it wouldn’t happen for free
Elboghdady: Hey what mean
UC: I wouldn’t get involved with anything for free
Elboghdady: Ah like hookup right
UC: If you wanted to watch me with the girls I would need some money. I’m
s single mom.
Elboghdady: What . . . No I don’t want see I’m okay with girls
UC: Okay. . .that works 4
Elboghdady: U want me come or what . . . I’m not pay okay with that
UC: Cam you at least bring them gifts? They feel more comfortable usually
...
Elboghdady: I will bring candy
J.A. 369–70.
Five minutes later, Elboghdady sent a text that demonstrated an explicit sexual
interest in the fictitious mother. J.A. 370–71. When the UC told him she’s “not into that
for” herself, Elboghdady changed course:
Elboghdady: Okay . . . Tell about girls what they like doing
UC: What do you want to do with the girls so I can get them ready for you?
Elboghdady: Sexy pants
UC: Like workout pants?
Elboghdady: How it workout . . . What? . . . Hello
UC: Like what kind of sexy pants
Elboghdady: Regular panties . . . What? . . . Okay
4
This ellipsis was included in the original text message.
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UC: Oh sexy panties??
Elboghdady: Yea . . . Tell about girls what they like doing
J.A. 371.
By this point, it was 5:00 p.m., and Elboghdady had left the Columbus, Ohio, area
and was traveling to Huntington, West Virginia, for the face-to-face meeting. The two
spoke on the phone for the first time while he was en route. In that call, he told the UC,
“I’m speak English just a little bit. I’m not understand all the words,” but that he would try
to understand. J.A. 384. The phone call ended, and they continued to text:
Elboghdady: Tell about girls what they like doing
UC: Like
Elboghdady: U tell me
UC: Like sexually?
Elboghdady: Yes . . . What?
UC: As long as you are gental they like anything.
...
Elboghdady: The girls virgin
UC: The 11 year old is. Do you still want her too?
J.A. 372.
Approximately five minutes later, Elboghdady called the UC again.             He was
confused about the numbers in her text messages and asked her to clarify:
Elboghdady: (T)ell me what you say about 11, like 11, like 10, 15? What is
number?
UC: Um, the ages? My girls ages? Is that what you’re asking? . . . Um, 11
and 13. Is that okay?
Elboghdady: Eleven . . . yeah okay, but I’m talking about um, the playing
about the girls. What you want, I do with the girls. I don’t need or I don’t
want to make any mistake, you know that?
...
UC: Right. Well, see the 11, the 11-year-old is a virgin so she’s never
actually had sex before, but her sister has told her about it. So, she knows
what happens, but I guess I just wanted to know, do you plan, do you plan
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on doing something like that with the 11-year-old so I can kind of let her
know what’s going on?
Elboghdady: Uh huh. Okay
UC: Does that make sense?
Elboghdady: Yeah. Mm-hmm. How old are you?
...
Elboghdady: Okay. I want a like fun, good time, to spend with you. Good
time. That’s it.
J.A. 388–89.
When the UC asked if she should have the fictitious children “shower down there”
to “get cleaned up,” Elboghdady responded “Yeah, I’m clean. I’m taken shower, no
worry.” J.A. 390. The UC then asked:
UC: Okay, so what can I tell the youngest one who has never had sex before?
That you would like to try to have sex with her, or do you want to try to have
sex with her since she’s a virgin?
Elboghdady: I don’t know. She wants what?
UC: She’s pretty laid back, she, she wouldn’t, I don’t think she would object.
Elboghdady: Mm-hmm. That’s okay if, if she like that, I would try.
...
UC: Well, I’ll just kind of, I’ll, I’ll let her know a little bit about what’s going
on so she’s kind of prepared, but.
Elboghdady: Well, okay. Cool. What about you? (laughing)
UC: Me?
Elboghdady: Yeah, I like you.
UC: Too bad I’m a lesbian, right?
Elboghdady: Yeah, I know you a lesbian, it’s okay. I play with you
sometime.
UC: Yeah, I guess I, I’ve never really been into men. So.
Elboghdady: Yeah. Try. Why not? If you are feeling comfortable, why not
. . .5
...
Elboghdady: Okay. It’s okay, no problem, ah, we will see if you feeling
comfortable with something.
UC: Okay. Alright. Well I think, I think meeting face to face will help and
then if I feel comfortable and then, um, I’ll take you to meet them.
5
This ellipsis appears in the original phone transcript.
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J.A. 390–91.
The two ended the phone call and returned to text messages. Elboghdady asked
which girl was a virgin and sent photos of himself for the fictitious girls to see what he
looks like. J.A. 372. He also asked the UC if he should send a photo of his private parts
and asked for a photo of the “girl virgin.” J.A. 373. Finally, he arrived at the meetup
location.
The UC recorded their face-to-face meeting. They met at a restaurant, but later left
to walk towards a house where the UC said the girls were. On the way, they had one final
conversation about the 11-year-old:
UC: So are you still wanting the youngest one even though she’s never done
anything before?
Elboghdady: No, I just first time, I’m scared. (laughter)
UC: Yeah (laughter) Do you, do you wanna try, or no?
Elboghdady: I will try.
...
UC: I told her that you might want to and she said that she would try.
Elboghdady: Okay
UC: But if, if it hurts, well . . . 6
Elboghdady: Yeah, sure
UC: We won’t do that.
J.A. 395–96. Law enforcement appeared at the scene and arrested Elboghdady
shortly afterwards.
B.
6
This ellipsis was included in the original transcript.
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The Government charged Elboghdady with a single count of traveling with the
intent to engage in criminal sexual activity, in violation of 

18 USC§ 2423

(b) and (e). At
trial, the government presented the timeline to the jury. Elboghdady’s proposed jury
instructions included an entrapment instruction. The government objected and argued that
no evidence of government inducement existed, and an entrapment instruction was thus
unwarranted. J.A. 161–62. The district court agreed. J.A. 171.
The jury subsequently convicted Elboghdady. At sentencing, the court accepted the
Presentence Report (PSR) and adopted its recommendations. It included the application
of an enhancement and cross reference applicable to crimes that involve a victim under the
age of 12. The court calculated a total offense level of 36, which set the Guidelines range
at 188–235 months’ imprisonment, but it varied downward and ultimately sentenced
Elboghdady to 120 months’ imprisonment.
Elboghdady now appeals both his conviction and sentence, arguing that he was
entitled to an entrapment instruction and that his sentence is unreasonable. We have
jurisdiction to hear his claims pursuant to 

28 USC§ 1291

 and 

18 USC§ 3742

(a) and
will address each argument in turn.
II.
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“We review the district court’s refusal to give an entrapment defense de novo.”
United States v. Hsu, 

364 F.3d 192

, 198 (4th Cir. 2004). 7 Although entrapment is generally
a jury question, a “court may find as a matter of law that no entrapment existed() when
there is no evidence in the record that . . . would show that the government’s conduct
created a substantial risk that the offense would be committed by a person other than one
ready and willing to commit it.” United States v. Osborne, 

935 F.2d 32

, 38 (4th Cir. 1991).
More than a scintilla of evidence of “(1) government inducement to commit a crime
and (2) the lack of predisposition on the part of the defendant to engage in criminal
conduct” must exist for a court to instruct the jury on entrapment. Hsu, 

364 F.3d at 198

.
“(I)t is only when the Government’s deception actually implants the criminal design in the
mind of the defendant that the defense of entrapment comes into play . . . .” Hampton v.
United States, 

425 VS 484

, 489 (1976) (quoting United States v. Russell, 

411 VS 423

,
436 (1973)).
A.
7
We acknowledge our circuit’s ambiguity in deciding which standard of review to
apply to an entrapment instruction challenge. Compare Hsu, 

364 F.3d at 198

 (“We review
the district court’s refusal to give an entrapment instruction de novo”), with United States
v. Smith, 

54 F.4e 755

 (2022) (“(w)e now address the district court's refusal to give the jury
an entrapment instruction. We review a district court's decision to give (or not give) a jury
instruction for abuse of discretion”). We are bound by the “earliest-case-governs” rule,
and therefore apply de novo review. See McMellon v. United States, 

387 F.3d 329

, 333
(2004) (“we have made it clear that, as to conflicts between panel opinions, application of
the basic rule that one panel cannot overrule another requires a panel to follow the earlier
of the conflicting opinions.”).
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Here, the district court declined to give the entrapment defense because it found that
“there wasn’t anything in the government’s approach that was excessive or overreaching.”
J.A. 171. Accordingly, we begin with government overreach. Government overreach, or
inducement is defined as “solicitation plus some overreaching or improper conduct on the
part of the government.” Hsu, 

364 F.3d at 200

. To be entitled to the defense, Elboghdady
must point to evidence of “government overreaching and conduct sufficiently excessive to
implant a criminal design in the mind of an otherwise innocent party.” 

Id. at 198

. He
claims that the UC’s decision to continue the conversation despite his repeated interest in
the fictitious mother and the language barrier that permeated their conversations provide
proof of overreach. We disagree.
Elboghdady points to the UC repeatedly offering him the fictious young girls as the
qualifying conduct. But repeated suggestions from law enforcement do not give rise to
government overreach. See, e.g., United States v. Velasquez, 

802 F.2d 104

, 106 (4th Cir.
1986) (holding that the defendant failed to show evidence of inducement where defendant’s
charge, based on acquiring cocaine, only occurred after law enforcement called the
defendants over thirty times to “suggest” that defendant acquire cocaine). His sustained
interest in the fictitious mother also fails to rise to the level of overreach because it does
not concern government action. Each time Elboghdady expressed interest in the mother,
the UC declined the advance and refocused the conversation on the two young girls. She
did so without persuading or otherwise swaying Elboghdady to act, so the defense is
unwarranted.
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Although our precedent compels an affirmance, we feel impelled to speak to the
nature of the evidence before the court. A plain reading of Elboghdady’s interaction with
the UC exposes his confusion. The confusion affects every phase of the timeline and was
obvious enough for the UC to recognize. We cannot say that she “overreached” here, under
the definition adopted in our entrapment jurisprudence, but the UC’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 clear evidence of someone’s confusion
obsolete. J.A. 135. Of course, that is not to suggest that only people who speak perfect
English can commit crimes. But here, where Elboghdady’s focus before he travelled to the
meeting was on the fictious mother and all comments made about children were either (1)
later revealed in the timeline as a point of his confusion and/or (2) never initiated by him
but offered in response to a direct question from the UC, the belief that Elboghdady was
“preying on children” should have been less tenable to a seasoned officer. For example,
the district court recognized that “there was certainly evidence that the defendant had a
significant language barrier.” J.A. 312. It found a number of instances in the timeline
“represent(ed) ambiguous statements,” and that “there was pretty clear evidence that the
defendant did pursue the mother persistently.” 

Proof of identity.

 See also J.A. 388–89 (Elboghdady,
while “travel(ing) in interstate commerce,” demonstrating his lack of understanding for
what the number “11” meant in the timeline communication) (quoting J.A. 12
(indictment)).
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 the district
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court deduced, “there is not evidence here that Mr. Elboghdady was a predator, was on the
prowl when he saw this (ad) and decided here was his chance to go have sex with a couple
of minors.” J.A. 315. We caution law enforcement to remember the purpose of its conduct
when operating undercover operations: “The function of law enforcement is the prevention
of crime and the apprehension of criminals. Manifestly, that function does not include the
manufacturing of crime.” Sherman v. United States, 

356 VS 369

, 372 (1958).
B.
Elboghdady also argues that the district court independently erred because it only
considered the inducement prong in its denial of the entrapment instruction. He contends
that because predisposition is “the principal element in the defense of entrapment,” the
court was required to decide that issue. Mathews v. United States, 

485 VS 58

, 63 (1988)
(quoting Russell, 

411 US at 433

) (internal quotation marks omitted). However, both
elements are required to unlock the instruction. A deficient showing on either prong ends
the analysis.    The court properly concluded that no evidence of inducement exists,
therefore, we find no error in the district court’s decision to deny the instruction on that
basis.
III.
A.
Next, Elboghdady challenges the reasonableness of his sentence. “Reasonableness
review has procedural and substantive components.” United States v. Hargrove, 

701 F.3d

156

, 160 (4th Cir. 2012) (quoting United States v. Mendoza-Mendoza, 

597 F.3d 212

, 216
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(4th Cir. 2010)). We review both for an abuse of discretion. Gall v. United States, 

552

US 38

, 51 (2007). “In applying the abuse-of-discretion standard, we review the district
court’s factual conclusions for clear error . . . and its legal conclusions de novo.” In re
Grand Jury 2021 Subpoenas, 

87 F.4e 229

, 250 (4th Cir. 2023).
Even when an appellant only challenges the substantive reasonableness of a criminal
sentence, as Elboghdady does here, the Supreme Court instructs us to first review
procedural reasonableness. United States v. Provance, 

944 F.3d 213

, 218 (4th Cir. 2019)
(“The Supreme Court has mandated that in reviewing any sentence, appellate courts ‘must
first ensure that the district court committed no significant procedural error.’ ”) (citing Gall,

552 US out of 51

).
B.
The dissent would not “consider (the) procedural reasonableness issue,” or any
argument Elboghdady previously dismissed. Diss. Op. at 24. True, Elboghdady previously
acknowledged that his Guidelines range calculation was technically appropriate. 

Proof of identity.

 But
circuit precedent prevents us from agreeing with the dissent. In Provance, this court
determined that the Supreme Court mandates appellate courts to “first ensure” no
procedural error exists. Provance, 944 F.3d at 218 (internal quotation marks omitted).
There, the Government “(i)nexplicably . . . (did) not argue the sentence . . . (was)
procedurally unreasonable. Indeed, the Government assert(ed) that the sentence (was), in
fact, procedurally reasonable.” Id. Still, we heeded Supreme Court instruction and vacated
the sentence as procedurally unreasonable. Id. at 219.
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According to the dissent, Gall does not “support() the far-reaching rule established
by Provance . . . that we scour the record for any procedural unreasonableness, even where
procedural reasonableness has not been challenged.” Diss. Op. at 26. In the dissent’s view,
Gall’s command to “first ensure that the district court committed no significant procedural
error” is limited to cases where both procedural and substantive sentencing errors are
alleged. Gall, 

552 US out of 51

. We disagree. The Gall Court’s discussion of sentencing
and sentence review was not limited to the circumstance of the case that was before the
Court. To the contrary, the relevant section of the opinion provides generally applicable
guidance on how courts should approach sentencing. See, e.g., Gall, 

552 US out of 49

 (“(A)
district court should begin all sentencing proceedings by correctly calculating the
applicable Guidelines range. As a matter of administration and to secure nationwide
consistence, the Guidelines should be the starting point and the initial benchmark.”
(internal citation omitted)); 

id.

 at 49–50 (“The Guidelines are not the only consideration,
however . . . . In (considering the § 3553(a) factors, the district court) may not presume that
the Guidelines range is reasonable.”); id. at 50 (the district court “must make an
individualized assessment based on the facts presented”); id. at 51 (“Regardless of whether
the sentence imposed is inside or outside the Guidelines range, the appellate court must
review the sentence under an abuse-of-discretion standard. It must first ensure that the
district court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range . . . .”). Thus, in our view, Gall supports the
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conclusion that an appellate court’s first responsibility in a sentencing challenge is to
review the procedural reasonableness of the challenged sentence. 8
C.
“A district court commits procedural error by failing to calculate (or improperly
calculating) the Guidelines range.” United States v. Smith, 

75 F.4e 459

, 464 (4th Cir.
2023) (internal quotation marks omitted). The application of sentencing enhancements is a
legal conclusion that we review de novo. United States v. Henderson, 

88 F.4e 534

, 536
(4th Cir. 2023). “While we acknowledge . . . that contentions not in the argument section
of the opening brief are ordinarily abandoned, we nonetheless conclude that we are
8
The dissent also argues that “(i)nstead of following Provance, we should follow
Louthian and Wallace.” Diss. Op. at 28; see United States v. Louthian, 

756 F.3d 295

, 306
(4th Cir. 2014) (stating only that the defendant “ma(de) no assertion that his forty-eight-
month sentence was tainted by procedural flaws . . .” before moving on to conclude that
the sentence was substantively reasonable); United States v. Wallace, 

515 F.3d 327

, 333–
34 (4th Cir. 2008) (“Since (the defendant) does not point out any procedural improprieties
in his sentence, we limit out review to . . . substantive reasonableness.”). The dissent
believes that the “earliest-case-governs” rule applies in this instance, and because Louthian
and Wallace predate Provance, we are limited to consideration of Elboghdady’s
substantive sentencing challenge. Diss. Op. at 28. We disagree for two reasons. First,
Provance is the first Fourth Circuit case to consider whether Gall requires procedural
review in all sentencing challenges, and the panel held that it does. Both cases the dissent
relies on stop short of analyzing the issue. Because neither Louthian nor Wallace held that
we are limited to the challenges the defendant brings, the earliest-case-rule is inapplicable
here. Second, even if we accept that dicta can be precedential on the question, Pauley, a
post-Gall case that predates the cases the dissent cites, would control. See United States v.
Pauley, 

511 F.3d 468

, 474 (4th Cir. 2007) (concluding that “there are no procedural errors”
in the sentence despite “