United States v. Calvin Winbush , 524 F. App'x 914 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4668
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CALVIN WINBUSH, a/k/a Good Game,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:12-cr-00021-HEH-1)
Submitted: March 21, 2013 Decided: May 24, 2013
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Sirianni, Jr., BROWNSTONE LAW FIRM, PA, Winter Park,
Florida, for Appellant. Neil H. MacBride, United States
Attorney, Jamie L. Mickelson, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin Winbush pled guilty to conspiracy to transport
a minor across state lines for prostitution, 18 U.S.C.A.
§ 2423(e) (West Supp. 2012) (Count One), and interstate
transportation of a minor for prostitution, 18 U.S.C.A.
§ 2423(a) (West Supp. 2012), 18 U.S.C. § 2 (2006) (Count Two).
He received an above-Guidelines sentence of 168 months’
imprisonment. Winbush appeals his sentence, contending that the
district court (1) erred in applying an enhancement for use of a
computer, U.S. Sentencing Guidelines Manual § 2G1.3(b)(3)(B)
(2011), and (2) failed to explain adequately its reasons for
varying upward from criminal history category II to category
III. We affirm.
In Cleveland, Ohio, one of Winbush’s prostitutes,
Sonora Armstrong, recruited a fifteen-year-old girl to work for
Winbush. The girl had been living on the streets and dancing at
an after-hours club. Armstrong took pictures of her and posted
them on backpage.com, an internet site where Winbush’s
prostitutes advertised their services. Winbush, Armstrong, the
minor, and another prostitute later traveled to Richmond,
Virginia, for the purpose of engaging in prostitution.
Armstrong posted additional pictures of the minor on the
internet site and the minor had sexual encounters with three
customers in Richmond.
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At the sentencing hearing, the district court applied,
over Winbush’s objection, a two-level increase for use of a
computer to entice, encourage, offer, or solicit a person to
engage in prohibited sexual conduct with a minor under USSG §
2G1.3 (b)(3)(B). Winbush argued that the commentary to § 2G1.3
did not provide clear guidance on how the enhancement should be
applied and that the plain language of the Guidelines did not
apply in his case.
Section 2G1.3(b)(3) states:
If the offense involved the use of a
computer or an interactive computer service
to (A) persuade, induce, entice, coerce, or
facilitate the travel of, [sic] the minor to
engage in prohibited sexual conduct; or (B)
entice, encourage, offer, or solicit a
person to engage in prohibited sexual
conduct with the minor, increase by 2
levels.
Application Note 4 to § 2G1.3 states:
Subsection (b)(3) is intended to apply only
to the use of a computer or an interactive
computer service to communicate directly
with a minor or with a person who exercises
custody, care, or supervisory control of the
minor. Accordingly, the enhancement in
subsection (b)(3) would not apply to the use
of a computer or an interactive computer
service to obtain airline tickets for the
minor from an airline’s Internet site.
The district court first decided that Application Note
4 was inconsistent with the language of § 2G1.3(b)(3)(B). The
court held that the enhancement applied in Winbush’s case
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because Armstrong, working in concert with Winbush, used a
computer to advertise the minor on the internet and solicit
customers for her. The court held that such conduct fell
squarely within the ambit of § 2G1.3(b)(3)(B).
Winbush’s total offense level was thirty-one. He was
in criminal history category II and his advisory Guidelines
range was 121-151 months. Before determining Winbush’s
sentence, the district court reviewed his criminal history,
which included assault, drug and firearm offenses, and
aggravated menacing. However, the court noted Winbush had
received very lenient sentences for most of his convictions.
With respect to the minor, the court observed that “her station
in life at the time of recruitment made her extremely
vulnerable, and it was compounded by the defendant’s recruitment
of her and placing her into the mainstream of prostitution
within his operation.”
The court explained its decision to sentence Winbush
above the Guidelines range as a variance in light of the 18
U.S.C. § 3553(a) (2006) factors, despite structuring it as an
increase from criminal history category II to category III. The
court stated that –
[A]n upward variance to Total Offense Level
31, Criminal History Category III is
appropriate to reflect the nature and
circumstances of the offense, the
defendant’s past criminal history which
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demonstrates a continuing pattern of
criminal violations not adequately
represented by the defendant’s present
criminal history, his demonstrated lack of
respect of the law, and to deter future
exploitation of minors for the purpose of
prostitution.
On appeal, Winbush first challenges the computer-use
enhancement. As he did before the district court, Winbush
relies on Application Note 4 for the proposition that the
enhancement applies only when a computer is used to communicate
directly with the minor or the minor’s custodian. Winbush also
argues that the enhancement is inapplicable because customers
who responded to the ads Armstrong posted used a telephone
rather than a computer to contact the minor. In support of his
argument, Winbush relies on United States v. Patterson, 576 F.3d
431, 443 (7th Cir. 2009), which found the enhancement
inapplicable where internet ads for the defendant’s minor
prostitute were posted by another minor who was working for a
different pimp.
We conclude that Patterson is distinguishable from
this case because both Winbush and Armstrong exercised
supervisory control over the minor and Armstrong advertised her
services on the internet. More importantly, we agree with the
district court that the facts of this case fall squarely within
the plain language of the Guideline. Under § 2G1.3(b)(3)(B),
the focus is on the use of a computer by the defendant or his
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agent to entice persons to engage in prohibited sexual conduct
with the minor. Application Note 4, however, appears to address
only the situation posited in § 2G1.3(b)(3)(A), where the
defendant uses a computer to contact the minor or her custodian
in order to entice the minor into prohibited sexual conduct.
Several decisions that address the quite different “pimp
scenario” in subsection (b)(3)(B) have found the enhancement
applicable. United States v. Burnett, 377 F. App’x 248, 252
(3rd Cir. 2010)(defendant personally communicated by computer
with individuals he enticed to have sex with the minor); United
States v. Vance, 494 F.3d 985, 997 (11th Cir. 2007) (defendant
used computer to direct undercover agent to provide underage
girls). We agree with the reasoning of these decisions, and
conclude that the district court did not err in applying the
enhancement.
Next, Winbush argues that the district court failed to
explain adequately its reasons for imposing a sentence above the
Guidelines range. This court reviews a sentence for procedural
and substantive reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). The
same standard applies whether the sentence is “inside, just
outside, or significantly outside the Guidelines range.” United
States v. Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir.)
(internal citation and quotation marks omitted), cert. denied,
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133 S. Ct. 274 (2012). In reviewing any variance, the appellate
court must give due deference to the sentencing court’s decision
because it “has flexibility in fashioning a sentence outside of
the Guidelines range,” and need only “set forth enough to
satisfy the appellate court that it has considered the parties’
arguments and has a reasoned basis” for its decision. United
States v. Diosdado-Star, 630 F.3d 359, 364, 366 (4th Cir.)
(citing Gall, 552 U.S. at 56), cert. denied, 131 S. Ct. 2946(2011); see also United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (sentencing court “must make an individualized
assessment based on the facts presented”) (citation and emphasis
omitted).
Here, the court reviewed Winbush’s criminal history,
the nature and circumstances of the offense, and the need to
prevent Winbush from further exploiting minors. We conclude
that the district court adequately explained its reasons for the
upward variance by providing an individualized assessment based
on the facts of Winbush’s offense and his criminal record.
Therefore, the district court did not abuse its discretion by
imposing a sentence of 168 months.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
Court and argument would not aid the decisional process.
AFFIRMED
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