United States v. Gregory Gibson , 840 F.3d 512 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1393
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Gregory Lynnell Gibson
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
____________
Submitted: September 23, 2016
Filed: October 21, 2016
[Published]
____________
Before WOLLMAN, BRIGHT, and KELLY, Circuit Judges.
____________
PER CURIAM.
Gregory Gibson pleaded guilty to sex trafficking of a child. In calculating the
advisory Guidelines range, the district court1 applied a two-level enhancement under
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
United States Sentencing Guidelines Manual (U.S.S.G.) § 2G1.3(b)(3)(B) after
determining Gibson used a computer to solicit customers to engage in prohibited
sexual conduct with a minor, and a five-level enhancement under U.S.S.G. § 4B1.5(b)
after determining Gibson engaged in a pattern of activity involving prohibited sexual
conduct. Gibson received a sentence of 144 months of imprisonment, then filed this
appeal arguing the district court erred in applying both enhancements. We affirm.
I
On January 29, 2014, law enforcement officers received a tip indicating a
sixteen-year-old girl was being held as a prostitute at a hotel in Springdale, Arkansas.
The ensuing investigation confirmed the presence of the girl at the hotel; it also
revealed Gibson had placed several advertisements on Backpage.com soliciting men
to engage in sexual conduct with the minor, representing her in some ads to be
nineteen years old and offering "100$ specials." One of the ads featured a picture of
a girl engaged in sexually explicit conduct. In an interview with the police, the girl
denied she was the person pictured in the ad, but acknowledged she had been
engaging in prostitution under Gibson's direction at the hotel since January 24, had
at least eight different "customers," and had engaged in sexual acts with at least three
of the men. She further explained how Gibson had recruited her to participate in the
prostitution even though he knew she was only sixteen. Investigators also discovered
a video on Gibson's cell phone showing him engaged in both oral and vaginal sex
with the girl.
A federal grand jury indicted Gibson with one count of sexual exploitation of
a minor for the purpose of producing child pornography in violation of 18 U.S.C. §§
2251(a) and (e), one count of sex trafficking of a child in violation of 18 U.S.C. §§
1591(a) and (b)(2), and one count of possessing material involving the sexual
exploitation of a minor in violation of 18 U.S.C. § 2252(a)(4)(B). Gibson agreed to
plead guilty to the charge of sex trafficking.
-2-
Prior to sentencing, a probation officer completed a Presentence Investigation
Report (PSR). In relevant part, the PSR recommended a two-level enhancement
because Gibson had used a computer to solicit customers to engage in sexual conduct
with a minor by placing ads on Backpage.com. See U.S.S.G. § 2G1.3(b)(3)(B) ("If
the offense involved the use of a computer or an interactive computer service to . . .
solicit a person to engage in prohibited sexual conduct with the minor, increase by 2
levels."). The PSR also concluded a five-level enhancement applied to Gibson for
engaging in a pattern of activity involving prohibited sexual conduct because he had
committed a covered sex crime but was not subject to the Guideline's Career Offender
provisions. See U.S.S.G. § 4B1.5(b) (providing for a five-level increase "in any case
in which the defendant's instant offense conviction is a covered sex crime, neither §
4B1.1 nor subsection (a) of this guideline applies, and the defendant engaged in a
pattern of activity involving prohibited sexual conduct"); see also id. cmt. n.(4)(B)(I)
(indicating a defendant "engage[s] in a pattern of activity involving prohibited sexual
conduct if on at least two separate occasions, the defendant engaged in prohibited
sexual conduct with a minor").
Gibson objected to both enhancements. The district court overruled the
objections, adopted the PSR's recommendations, and calculated Gibson's advisory
Guidelines range at 235-293 months. After granting a departure and variance not
relevant to this appeal, the district court sentenced Gibson to 144 months of
imprisonment. This timely appeal followed.
II
We apply de novo review to any legal conclusions the district court reached in
applying an enhancement, and review for clear error any factual findings supporting
an enhancement. United States v. Dixon, 822 F.3d 464, 465 (8th Cir. 2016).
-3-
Gibson first argues the district court erred by applying a two-level enhancement
under § 2G1.3(b)(3)(B). Gibson does not deny he used a computer to post ads on
Backpage.com in order to solicit customers – conduct expressly covered by the
guideline – but contends the commentary to the guideline limits the enhancement to
using a computer to communicate directly with a minor. In relevant part, the
commentary states as follows:
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.
U.S.S.G. § 2G1.3(b)(3) cmt. n.4 (emphasis added).
Subsection (b)(3), however, has two subparts. Subpart (A) discusses the use
of a computer as it relates directly to a minor (or a minor's caretaker), the subject
addressed in Application Note 4. See id. § 2G1.3(b)(3)(A) (discussing the use of a
computer to . . . "persuade, induce, entice, coerce, or facilitate the travel of, the minor
to engage in prohibited sexual conduct"). Subpart (B) discusses the use of a computer
as it relates to third parties other than the minor (or a minor's caretaker), a subject on
which Application Note 4 is silent. See id. § 2G1.3(b)(3)(B) (discussing the use of
a computer to . . . "entice, encourage, offer, or solicit a person to engage in prohibited
sexual conduct with the minor"). But because Note 4 refers to all of "Subsection
(b)(3)," not just "(b)(3)(A)," and purports to limit the entire subsection to direct
communications with a minor (or a minor's caretaker), Gibson argues the two-level
enhancement does not apply to his conduct even though the guideline itself refers to
the use of a computer to "solicit a person to engage in prohibited sexual conduct with
the minor." U.S.S.G. § 2G1.3(b)(3)(B).
-4-
When there is a conflict between a guideline and the commentary, it is the
guideline that controls and not vice versa. See Stinson v. United States, 508 U.S. 36,
38 (1993) ("[C]ommentary in the Guidelines Manual that interprets or explains a
guideline is authoritative unless it . . . is inconsistent with . . . that guideline.").
Other circuits have confronted this precise issue, and have held Note 4 is
inconsistent with subpart (b)(3)(B) and therefore does not apply to that portion of the
guideline. See United States v. Hill, 783 F.3d 842, 846 (11th Cir. 2015) ("Because
the application note is inconsistent with the plain language of U.S.S.G. §
2G1.3(b)(3)(B), the plain language of the guideline controls."); United States v.
Cramer, 777 F.3d 597, 606 (2d Cir. 2015); United States v. McMillian, 777 F.3d 444,
450 (7th Cir. 2015); United States v. Pringler, 765 F.3d 445, 454 (5th Cir. 2014);
United States v. Winbush, 524 F. App'x 914, 916 (4th Cir. 2013). These courts
reason that Note 4 is a drafting error intended to apply only to subpart (b)(3)(A), and
cannot mean what it says with respect to subpart (b)(3)(B) because it "would render
Subsection 3(B) inoperable in all but a narrow subset of cases under only one of the
numerous criminal statutes the Guideline covers." Pringler, 765 F.3d at 454.
We join these other circuits in holding that Note 4 is inconsistent with the
guideline itself. Because § 2G1.3(b)(3)(B) itself expressly covers Gibson's conduct,
the district court did not err in applying the two-level enhancement.
Gibson next argues the district court erred by applying a five-level
enhancement under § 4B1.5(b). He contends the two separate occasions the guideline
requires to constitute a "pattern of activity" should not include activity involved in
his instant offense of conviction for sex trafficking, i.e., the multiple occasions he
posted ads on Backpage.com, the multiple occasions the minor engaged in prohibited
sexual conduct at his direction, his production of a sexually explicit video of the
minor, or his own sexual contact with the victim. This argument is foreclosed by our
precedent. See United States v. Rojas, 520 F.3d 876, 883 (8th Cir. 2008) ("We now
-5-
hold that subsection (b) [of § 4B1.5] may apply where there is no prior sex offense
conviction and the only 'pattern of . . . conduct' is conduct involved in the present
offense of conviction"); see also United States v. Wells, 648 F.3d 671, 675 (8th Cir.
2011) ("[O]ne panel of this Court is not at liberty to overrule an opinion filed by
another panel.").
III
We affirm the district court.
______________________________
-6-