PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 16-4140


UNITED STATES OF AMERICA,

                    Plaintiff – Appellee,

             v.

FATHIA-ANNA DAVIS,

                    Defendant – Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:15-cr-00076-RJC-DSC-1)


Argued: March 30, 2017                                           Decided: May 1, 2017


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Affirmed by published opinion. Judge Shedd wrote the opinion, in which Judge Duncan
and Judge Agee joined.


ARGUED: Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF:
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
SHEDD, Circuit Judge:

      Without knowing their true identity, Fathia-Anna Davis hired two undercover

police detectives to murder her ex-husband. During the detectives’ undercover

investigation, Davis used her car and three mobile phones on multiple occasions to meet

and communicate with them about the plot, and she eventually paid them $4,000 when

they falsely told her the murder had been committed. As a result, Davis was convicted

and sentenced to the 120-month statutory maximum under the federal “murder-for-hire”

statute, 18 U.S.C. § 1958. 1 She now appeals, arguing that the district court erred by

denying her motion to dismiss the § 1958 charge based on the “manufactured

jurisdiction” doctrine and by imposing an unreasonable sentence. Finding no merit to

these arguments, we affirm.

                                            I

      We first address Davis’ “manufactured jurisdiction” argument. Pertinent here,

§ 1958 criminalizes the use of any facility of interstate or foreign commerce, including

means of transportation and communication, with intent that a murder be committed for

compensation. Davis moved to dismiss the charge against her based on the manufactured

jurisdiction doctrine, which prohibits the government from “manipulat[ing] events to

create federal jurisdiction over a case.” United States v. Al-Talib, 

, 929 (4th

Cir. 1995). By invoking this doctrine, Davis essentially argues that the government failed

      1
         The punishment under § 1958 increases depending on the harm to the victim. If,
as here, the crime results in no personal injury, the statutory maximum is 10 years, but
the maximum increases to 20 years if personal injury results, and to life imprisonment or
death if death results.

                                            2
to prove the requisite use of a facility of interstate or foreign commerce. See United

States v. Wallace, 

, 1065-66 (2d Cir. 1996). 2 We review this matter de novo,

viewing the evidence in the light most favorable to the government. United States v.

Fuertes, 

, 501-02 (4th Cir. 2015), cert. denied, 

(2016).

                                           A.

       The government’s evidence establishes that while Davis was married to Jodi Davis

(“Jodi”), she unsuccessfully attempted to kill him by putting Ambien in his food before

he went to work. Davis intended for Jodi to lose consciousness while driving and die in a

car crash. However, Jodi passed out from his Ambien-laced food before driving and

eventually received medical care. When Davis learned that Jodi was alive in the hospital,

she told her family nanny that she thought Jodi was dead, and she also described her

effort to drug and kill him. The nanny later told Jodi about the drugging, and Davis fired

her.

       After divorcing Jodi, Davis asked her friend Huy Nguyen if he knew anyone who

could kill Jodi. Davis was aware that Nguyen had previously worked for a car dealership

used by gang members and drug dealers. Nguyen advised Davis not to kill Jodi and told

her that he would ask someone to do so if she wanted him to.

       However, Nguyen decided against helping Davis and several days later told a

Charlotte-Mecklenburg Police Department (“CMPD”) officer about her request.

       2
         The government correctly notes that an interstate commerce element of a federal
crime “implicates the power of Congress to regulate the conduct at issue, not the
jurisdiction of the court to hear a particular case.” United States v. Carr, 

,
178 (4th Cir. 2001).

                                            3
Subsequently, CMPD Detective Jim Hetrick met Nguyen, who agreed to assist police

with an investigation. At the request of officers, Nguyen sent Davis a text message stating

he had found someone to do the job for her. Through a series of cellphone conversations

and text messages, Nguyen arranged for Davis to meet CMPD undercover detectives

Robert Rendon and Rolando Ortiz-Trinidad. Eventually, Davis met with them on three

occasions, and she drove her car to and from each meeting.

       The first meeting occurred on February 15, 2015, at a shopping center. Nguyen

introduced Davis to the detectives, and she got into their unmarked car. Davis used a

mobile phone to show the detectives Jodi’s photograph and told them that she wanted

him killed. Davis then directed the detectives to Jodi’s apartment complex, where she

provided his address and identified his automobiles. During the meeting, the detectives

asked Davis if she was certain of her intent to have Jodi killed, and she replied: “I want

him out of my life. I want him out of my daughter’s life. I’ve been trying for the last two

years.” J.A. 104. Davis and the detectives discussed the timing and method of the murder

and agreed on a price of $4,000, with $500 to be paid up front. After the detectives and

Davis returned to the shopping center, Jodi happened to pass by, and Davis pointed him

out.

       Three days later, on February 18, Davis placed a voice call and sent several text

messages asking the detectives to call her. Although Davis had previously used two other

phones to arrange the first meeting, this time she used a Tracfone, which is a prepaid

phone that can be obtained without a name or credit-card information. Detective Rendon



                                            4
returned Davis’ call and arranged to meet her at the same shopping center where they

previously met.

       On February 22, Davis met with the detectives and gave them $500 as the down

payment for the planned murder. She also displayed the remaining $3,500, which would

be due after the murder. When Davis learned that the murder would not occur that day,

she appeared to be disappointed. The detectives told Davis to call them if she changed her

mind, but she replied that her mind was made up. When Davis overheard Detective Ortiz

telling Detective Rendon to “let her know that this is final,” she replied, “Yeah. I

understand it’s final.” J.A. 168-69.

       Two days later, Detective Rendon called Davis on her Tracfone, told her that they

had murdered Jodi, and arranged a final meeting at a gas station for her to deliver the

outstanding balance of $3,500. Of course, Jodi - who was cooperating with police - was

alive and well, and to assist the operation he had temporarily stopped going to work and

using his phone. Additionally, the police made Jodi’s apartment look like a crime scene,

complete with crime-scene tape and a marked vehicle.

       Within a few minutes of the phone call, Davis met the detectives at the gas station.

Because a camera monitored the premises, Davis asked the detectives to move to a

different location. They drove across the street, where Davis got into the detectives’ car

and asked how they killed Jodi. Upon hearing their description of the murder, Davis paid

the detectives $3,500. Detective Ortiz then asked Davis for her phone, but she responded

that a friend was going to destroy it for her. Detective Ortiz said that he would destroy the

phone, and he grabbed and broke it. Davis returned to her car and left.

                                             5
       Subsequently, CMPD officers arrested Davis. During a search incident to this

arrest, officers recovered the two mobile phones that she used to set up the February 15

meeting.

                                            B.

       Davis properly acknowledges that automobiles and telephones are facilities of

interstate or foreign commerce for § 1958 purposes, see Brief for Appellant, at 25-26, and

the foregoing summary shows that the government presented abundant evidence of her

frequent car and cell phone use to facilitate the murder plot. However, relying primarily

on United States v. Coates, 

(4th Cir. 1991), Davis argues that her

conviction must be vacated. In her view, when officers asked Nguyen to send a text

message informing her that he found someone to kill Jodi, they improperly manufactured

jurisdiction by “avail[ing] themselves of the facilities of interstate commerce in the first

instance.” Brief for Appellant, at 21. She further contends that her response to the Nguyen

text message and her subsequent use of her mobile phones and car to communicate and

meet with the detectives during the plot do not alter the analysis. We disagree.

       In Coates, which involved a § 1958 conviction, we considered “whether the

government can prosecute a person for arranging a murder-for-hire through the use of

interstate commerce facilities, where the only basis for federal jurisdiction derives from

actions the government admits were undertaken by its agents solely to manufacture

(emphasis added). We explained that despite

investigating Coates for a month, the government “had no evidence of his use of

interstate mail or wire facilities in connection with the murder-for-hire scheme. To cure

                                             6
this problem, the government agent drove to Virginia for the sole purpose of making a

telephone call across state lines in order to induce Coates to ‘use’ that interstate facility to

discuss the scheme.” 

3 On appeal, Coates argued that “such ‘manufactured

jurisdiction’ cannot form the basis for a federal prosecution.” 

We agreed.

       We began our analysis by looking at United States v. Archer, 

(2d

Cir. 1973), where the court dismissed an indictment under the analogous Travel Act, 18

U.S.C. § 1952, which prohibits traveling in interstate or foreign commerce, or using the

mail or any facility in interstate or foreign commerce, with intent to engage in certain

illegal activity. The Archer court based its ruling in part on the fact that the government’s

agent made the necessary interstate telephone call for the sole purpose of transforming an

otherwise local offense into a federal crime. The court explained that in enacting the

Travel Act and similar legislation federalizing criminal conduct on the basis of its

interstate connections, Congress “did not mean to include cases where the federal officers

themselves supplied the interstate element and acted to ensure that an interstate element

would be 

. 4




       3
         When Coates was decided, § 1958 required use of a facility in interstate or
foreign commerce. Congress has since amended the statute to its current form, which
requires only use of a facility of interstate or foreign commerce.
       4
        In denying the government’s rehearing petition, the Archer panel clarified that it
“went no further than to hold that when the federal element in a prosecution under the
Travel Act is furnished solely by undercover agents, a stricter standard is applicable than
when the interstate or foreign activities are those of the defendants 

.

                                               7
       Continuing, we pointed to United States v. Brantley, 

(4th Cir. 1985),

where we reversed a Hobbs Act conviction. Citing Archer, we stated that “federal agents

may not manufacture jurisdiction by contrived or pretensive means,” 

and we

noted that the only involvement of interstate commerce lay in the FBI’s movement of

gambling machines, liquor, and money across state lines to establish a phony gambling

parlor. We explained that “[i]t was wholly unnecessary for the FBI to move gambling

equipment from Virginia to South Carolina, or to have its agents pretend to gamble and to

purchase whiskey. We do not think the commercial predicate for federal jurisdiction can

be found in such pretense on the part of federal agents.” 

authorities in Coates, we examined the government’s reasons for

making the interstate phone call and concluded that “there is no doubt here that, by the

government’s candid admission, it was solely to create a federal crime out of a state

. We therefore held that the § 1958 count “was not based upon

cognizable federal jurisdiction and should have been dismissed.” 

emphasized “the narrowness of our holding,” noting that it was based “entirely on the

fact that the only reason the sole jurisdictional link occurred here was that it was

contrived by the government for that reason alone.” 

original).

       Davis’ reliance on Coates specifically, and the manufactured jurisdiction doctrine

generally, is misplaced for several reasons. First, contrary to Davis’ apparent contention,

the manufactured jurisdiction doctrine does not categorically prohibit government agents

who are conducting an undercover operation from using a facility of interstate or foreign



                                             8
commerce to initiate contact with a suspect. Instead, it only prohibits them from doing so

for the sole purpose of transforming a state crime into a federal crime. 5

       Second, on the record before us, the manufactured jurisdiction doctrine simply has

no bearing. Unlike Coates, where the government conceded that its agent telephoned the

defendant for the sole purpose of manufacturing jurisdiction, the record here is silent

regarding the officers’ intent in instructing Nguyen to send Davis the original text

message. Cell phone usage is obviously commonplace in modern society, and it is likely

that the officers asked Nguyen to text Davis because that was a convenient means of

communicating with her. Although this supposition is not established in the record, it is

clear that there is no evidence to suggest that the officers directed Nguyen’s text solely to

trigger a federal crime.

       In United States v. Brinkman, 

(4th Cir. 1984), a Travel Act case, we

considered a manufactured jurisdiction challenge based on a similarly silent - but much

more suspicious - record. There, the defendant’s only pertinent interstate travel occurred

during an undercover operation when a government agent selected a rendezvous point

with him that was 100 yards across state lines. We expressed concern about the

“troubling implications” from the selection of the rendezvous point, but we rejected the


       5
          In United States v. Goodwin, 

(4th Cir. 1988), government agents
operating a reverse sting project initiated contact with the defendant by mail after seeing
his advertisement for child pornography in an adult magazine. Relying on Brantley, the
defendant sought reversal of his child pornography conviction on manufactured
jurisdiction grounds. In affirming the conviction, we implicitly rejected the notion that
government agents are prohibited from using a facility of interstate or foreign commerce
to initiate contact with a suspect. 

n.3.

                                              9
manufactured jurisdiction defense because the record did not provide “an adequate

explanation supporting a conclusion of improper purpose for the somewhat dubious turn

of events.” 

We explained:

       To conclude that the interstate travel was indeed “manufactured,” without
       the benefit of any explanation on the record as to the basis for the decision
       determining the location of the meeting, would be to assume that there was
       no legitimate explanation underlying the choice. We decline to operate
       from the premise that the government’s actions were presumptively
       improper. . . .

it clear that the manufactured jurisdiction doctrine comes into play

only when there is evidence to support it. Evidence of this type is lacking here. 6

       Finally, even if we accept Davis’ contention that Nguyen’s initial text was

contrived by law enforcement officers to establish a § 1958 federal nexus, the

manufactured jurisdiction doctrine still provides her no relief. Unlike Coates, this is

simply not a case where a suspect’s use of a facility of interstate or foreign commerce is a

one-time direct response to a government agent’s invitation. Instead, the record is replete

with instances in which Davis voluntarily used her car and mobile phones to meet and

communicate with the detectives regarding the murder-for-hire scheme. Each of these

voluntary acts by Davis is sufficient to support her criminal culpability under § 1958, and

they are not somehow tainted or discounted by Nguyen’s initial text.

       6
        In two other Travel Act cases, we found the manufactured jurisdiction doctrine to
be unavailing based on the lack of evidence. See United States v. Cooper, 1995 Westlaw
44654, *1 (4th Cir. 1995) (noting that the defendant “could not show that the only
reason” for an undercover drug deal occurring across state lines was to establish a federal
crime); United States v. Hillary, 1988 Westlaw 118652, *3 (4th Cir. 1988) (noting that
“there [was] no evidence in the record from which to conclude the interstate travel or
communications were specifically manufactured to create federal jurisdiction”).

                                             10
                                              II

       Having disposed of Davis’ challenge to her conviction, we now consider her

challenge to her sentence. Ordinarily, our review of a criminal sentence requires initial

consideration of whether the district court committed significant procedural error, such as

incorrectly interpreting or calculating the Guidelines range; if there is no procedural

error, we then examine the substantive reasonableness of the sentence for abuse of

discretion, applying a presumption of reasonableness to a sentence that is within the

guidelines range. United States v. White, 

, 674 (4th Cir. 2017).

                                              A.

       The sentencing guideline for § 1958 is found in U.S.S.G. § 2E1.4, which provides

for two possible base offense levels: 32 or, if greater, the level applicable to the

underlying unlawful conduct. Here, the presentence report (PSR) cross-applied U.S.S.G.

§ 2A1.5, which applies to conspiracy or solicitation to commit murder, and which

establishes a base offense level of 33. The PSR added four levels under § 2A1.5(b)(1)

because Davis offered to pay money to the undercover detectives for the murder. Davis

thus had a total offense level of 37. With a criminal history category of I, the PSR

calculated Davis’ advisory guideline range to be 210-262 months. However, because the

statutory maximum for Davis’ offense is 10 years, the PSR recommended 120 months as

the guideline term. See U.S.S.G. § 5G1.1(a) (“Where the statutorily authorized maximum

sentence is less than the minimum of the applicable guideline range, the statutorily

authorized maximum sentence shall be the guideline sentence.”). Without objection, the

district court adopted this recommendation.

                                              11
       At sentencing, Davis presented several character witnesses and spoke directly to

the court, and her attorney requested a downward variance sentence of time served

(approximately 8 months). The gist of her presentation is that she is a good person who

has learned from her mistake, and that no further incarceration is needed. Speaking as a

victim, Jodi stated that Davis had made “several attempts” on his life, and he asked the

court to impose the maximum sentence. J.A. 426. The government also argued for the

maximum sentence. During the parties’ presentation, the court expressed concern for

Davis’ untruthfulness and her apparent failure to accept responsibility for her criminal

conduct. Ultimately, the court sentenced Davis to 10 years, stating that the sentence is

sufficient, but not greater than necessary, to accomplish the sentencing factors set forth in

18 U.S.C. § 3553(a). The court noted that it had considered Davis’ downward variance

request and explained the necessity for a 10-year sentence under the circumstances of this

case and the § 3553(a) factors, particularly the need for deterrence and protection of the

public. The court also discounted the notion that Davis’ attempt to kill Jodi was an

aberrant act, finding that this was not the first time she attempted to kill him. The court

described Davis’ crime as being “cold,” “calculated,” and showed “real intent to kill

another human being.” J.A. 443.

                                             B.

       In challenging her sentence, Davis references several mitigating factors and

generally asserts that the district court should have relied upon them to vary downward

from the 10-year advisory range. However, the primary basis for her argument involves

an attack on the operation of the guidelines. Specifically, she contends that her sentence

                                             12
is “substantively unreasonable, and a significant portion of the blame for that belongs to

the guideline that governed [her] offense of conviction.” Brief for Appellant, at 35.

       The guideline to which Davis refers is § 2E1.4 which, as noted, provides for a

minimum base offense level of 32 for a § 1958 murder-for-hire offense. Pointing to the

graduated penalties set forth in § 1958, Davis notes that her conviction, which involved

no physical injury to Jodi, carries a 10-year maximum imprisonment term but no

minimum term, and she asserts that the interplay between the guidelines and § 1958

creates an incongruity. As she explains, in cases such as hers, § 2E1.4 will always make

§ 2A1.5 the applicable guideline, and the base offense level will therefore always be 33. 7

Additionally, she states that because the offer or receipt of something of pecuniary value

is an element of § 1958, everyone convicted under that statute will receive a four-level

enhancement under § 2A1.5. “In other words, every defendant convicted under the ten-

year-maximum provision of 18 U.S.C. § 1958 will have a base offense level of at least

37, just as [Davis] did, and every defendant’s guideline imprisonment range will be 120

months, just as [hers] was.” Brief for Appellant, at 38.

       For this reason, Davis states that “she is challenging the reasonableness” of §

2E1.4, Reply Brief for Appellant, at 7, and she refers to the 10-year range in this instance

as being “absurdly high” 

and a “perverse result[] that derive[s] from a guideline

that ignores Congress’s graduated punishment scheme,” Brief for Appellant, at 40. In

       7
        We note that other circuit courts have rejected challenges to the § 2E1.4 cross
reference to § 2A1.5. See, e.g., United States v. Lisyansky, 

, 709-10 (2d Cir.
2015), cert. denied, 

(2016); United States v. Smith, 

, 647 (8th
Cir. 2014).

                                             13
Davis’ view, she “should have been sentenced under a guideline consistent with the

punishment provided by the statute of conviction, a guideline that provided for a range of

punishment, and did not deny her her right to individualized sentencing.” Reply Brief for

Appellant, at 15 (emphasis in original). Seeking resentencing, she claims that “the

guideline range should not serve as a ‘starting point’ or a ‘benchmark;’ the sentence

should be viewed instead in relation to Congress’s prescribed penalty” and with

consideration of her mitigating evidence and criminal history score. Brief for Appellant,

at 43.

         Davis labels this argument as a challenge to the substantive reasonableness of her

sentence, but we believe that it fits neatly in the category of procedural error. See, e.g.,

Molina-Martinez v. United States, 

, 1345-46 (2016) (“A district court that

‘improperly calculate[es]’ a defendant’s Guidelines range . . . has committed a

‘significant procedural error.’” (citation omitted)); United States v. Diaz-Ibarra, 

, 347 (4th Cir. 2008) (“An error in the calculation of the applicable Guidelines range,

whether an error of fact or of law, infects all that follows at the sentencing proceeding,

including the ultimate sentence chosen by the district court, and makes a sentence

procedurally unreasonable.”). However, regardless of whether the theory involves

procedural or substantive error, or both, Davis did not advance it below. Certainly, her

request for a downward variance based on her personal characteristics - which involves a

very different analysis - was insufficient to alert the district court to the technical legal

argument she now makes.



                                             14
                                             C.

       To the extent that Davis is challenging the district court’s interpretation or

application of the guidelines, which is her primary argument, her failure to raise that

argument below results in plain-error review. United States v. Bennett, 

,

199-200 (4th Cir. 2012). Under this standard, our “authority to remedy [an] error . . . is

strictly circumscribed.” Puckett v. United States, 

, 134 (2009). In our

discretion, we may correct an error not raised in the district court only where the

appellant demonstrates: (1) there is in fact an error; (2) the error is clear or obvious,

rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial

rights, which in the ordinary case means it affected the outcome of the district court

proceedings; and (4) the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings. United States v. Marcus, 

, 262 (2010).

       We conclude that the district court did not err in establishing and considering 120

months as the guideline range. The guidelines are the “starting point” and “initial

benchmark” for sentencing, Beckles v. United States, 

, 894 (2017), and the

court was required to consult them as part of the process. In doing so, the court correctly

interpreted and calculated the guidelines, and properly recognized that because the

advisory range (210-262 months) exceeded the statutory maximum for Davis’ offense

(120 months), the range became 120 months. This range is not, as Davis asserts,

“absurdly high” or “perverse,” it does not contravene the § 1958 graduated punishment

scheme, and it did not deny Davis her right to individualized sentencing. From the 120-

month “starting point,” Davis was permitted to argue for a downward variance. The court

                                             15
did not place undue weight on the guideline range, but instead gave respectful

consideration to Davis’ presentation and explained its reasons for denying the request in

light of the facts of this case and the § 3553(a) factors. “This sort of particularized

assessment is the hallmark of individualized sentencing.” United States v. Spencer, 

, 329 (4th Cir. 2017).

       Even if some error lurks in this circumstance, it certainly is not plain. Our cases

hold that an error is plain if (1) the explicit language of a statute or rule resolves the

question or (2) at the time of appellate consideration, the settled law of the Supreme

Court or this Court establishes that an error has occurred. See United States v. Carthorne,

, 516 (4th Cir. 2013); United States v. Beasley, 

, 149 (4th Cir.

2007). In the absence of such authority, as is the case here, “the issue has not been

resolved plainly.” United States v. Wynn, 

, 480 (4th Cir. 2012) (emphasis in

original).

                                            D.

       Apart from her challenge to the guideline application, Davis also argues more

generally that the district court abused its discretion because mitigating factors warrant a

downward variance sentence substantially below 10 years. This argument - which is

consistent with her position below - presents a straightforward challenge to the length of

the sentence in light of her particular circumstances and the § 3553(a) factors, and it

therefore questions the substantive reasonableness of the sentence. See United States v.

Hargrove, 

, 183-84 (4th Cir. 2010) (discussing various substantive



                                            16
reasonableness theories). As is evident from our previous discussion, we find no merit to

this argument.

      Looking at the “totality of the circumstances,” Gall v. United States, 

,

51 (2007), we are satisfied that the court did not abuse its discretion by imposing the

presumptively reasonable 10-year sentence. The court properly considered the parties’

sentencing arguments and provided a reasoned explanation for the sentence, with specific

consideration of the § 3553(a) factors and Davis’ downward variance request.

                                           III

      Based on the foregoing, we affirm the conviction and sentence.

                                                                            AFFIRMED




                                           17