United States v. Mauricio Gonzalez

USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 1 of 20
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13950
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICIO GONZALEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cr-80087-DMM-1
____________________
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 2 of 20
2 Opinion of the Court 21-13950
Before LAGOA, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Mauricio Gonzalez appeals his convictions and concurrent
240-month sentences for receipt of child pornography, in violation
of 18 U.S.C. § 2252(a)(2) and (b)(1) (Count 2), and transportation of
a minor with intent to engage in criminal sexual activity, in viola-
tion of 18 U.S.C. § 2423(a) (Count 3). First, with respect to Gonza-
lez’s conviction on Count 3, he argues that the district court erred
in determining that the predicate felony offense underlying Gonza-
lez’s conviction for transportation of a minor with intent to engage
in criminal sexual activity was an offense “for which any person can
be charged.” Second, he argues that there was insufficient evidence
to support a conviction for transportation of a minor with intent to
engage in criminal sexual activity because the government did not
prove that sexual activity was the dominant purpose of Gonzalez
buying the flight for the minor, A.S., and her return journey fell
under the “innocent round trip” exception. Third, he argues that
the indictment did not sufficiently allege the elements of transpor-
tation of a minor with intent to engage in criminal sexual activity
when it did not identify the predicate state offense. Fourth, he ar-
gues that there was insufficient evidence to support his Count 2
conviction for receipt of child pornography where the government
did not prove knowing receipt and the explicit video did not in-
volve the “use of” a minor. Fifth, he argues that the district court
erred in imposing a five-level enhancement under U.S.S.G. § 4B1.5
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 3 of 20
21-13950 Opinion of the Court 3
for a pattern of activity involving prohibited sexual conduct be-
cause Gonzalez was convicted of transporting A.S. one time and
had a romantic relationship with her. Sixth, he argues that the dis-
trict court erred when it imposed a two-level enhancement under
U.S.S.G. § 3C1.1 for obstruction of justice based on a hearsay state-
ment that Gonzalez attempted to hire his cellmate to murder A.S.
We address in turn each of Gonzalez’s six arguments.
I. DISCUSSION
A. Was the predicate felony offense underlying Gonza-
lez’s § 2423(a) conviction for transportation of a mi-
nor with intent to engage in criminal sexual activity
an offense “for which any person can be charged?”
We review issues of statutory interpretation de novo.
United States v. Wilson, 788 F.3d 1298, 1310 (11th Cir. 2015).
When a defendant raises a statutory interpretation claim for the
first time on appeal, we review for plain error. Id. To prevail on
plain-error review, the defendant must show that there was (1) an
error; (2) that is plain; (3) that affected the defendant’s substantial
rights; and (4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. at 1308-09. An error must
be plain under controlling precedent or the “unequivocally clear”
language of a statute or rule. United States v. Aguilar-Ibarra, 740
F.3d 587, 592 (11th Cir. 2014) (quotation marks omitted).
Section 2423(a) provides:
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 4 of 20
4 Opinion of the Court 21-13950
A person who knowingly transports an individual
who has not attained the age of 18 years in interstate
or foreign commerce . . . with intent that the individ-
ual engage in prostitution, or in any sexual activity for
which any person can be charged with a criminal of-
fense, shall be fined under this title and imprisoned
not less than 10 years or for life.
18 U.S.C. § 2423(a) (emphasis added). Under Florida law, “[a] per-
son 24 years of age or older who engages in sexual activity with a
person 16 or 17 years of age commits a felony of the second de-
gree.” Fla. Stat. § 794.05(1). “Section 794.05 was amended in 1996
so that only persons over the age of twenty-four, instead of ‘any
person,’ could be guilty of violating the statute.” Acevedo v. Wil-
liams, 985 So. 2d 669, 670 n.1 (Fla. Dist. Ct. App. 2008).
Gonzalez argues that § 2423(a) requires that the interstate or
foreign transportation be “with intent that the individual engage .
. . in any sexual activity for which any person can be charged with
a criminal offense.” He argues that Florida’s § 794.05(1) cannot be
such predicate offense because only persons 24 years or older can
violate § 794.05(1). Thus, he argues, § 794.05(1) is not an offense
with which any person—i.e. any and every person—can be
charged. However, Gonzalez raises this argument for the first time
on appeal. Therefore, we review only for plain error.
When interpreting a statute, we first look to whether the
statutory language has a plain and unambiguous meaning. Wilson,
788 F.3d at 1310. If the statute’s meaning is plain and unambigu-
ous, there is no need for further inquiry, unless the reading would
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 5 of 20
21-13950 Opinion of the Court 5
lead to an absurd result. Id. We do not look at a word in isolation
but look to the statutory context. Id. We have stated that the word
“any” has an expansive meaning. Id. at 1311.
Here, the district court did not plainly err because there is
no binding precedent or unequivocally clear statutory language in
§ 2423 indicating that the predicate state offense underlying the
conviction for transportation of a minor, a violation of Fla. Stat.
§ 794.05(1), was not an offense for which “any person” can be
charged under § 2423. The dictionary definition of “any” is “an un-
specified number or quantity of a thing or things, no matter how
much or how many; some.” Any, Oxford English Diction-
ary Online, https://www.oed.com/view/Entry/8973 (last visited
Apr. 4, 2023). So the word “any” could mean any one or some or
all indiscriminately. In short, it is not unequivocally clear from the
statutory language that § 794.05(1) is not an offense for which “any
person” can be charged.
B. Sufficiency of the evidence for the Count 3 convic-
tion for transportation of a minor with intent to en-
gage in criminal sexual activity
Gonzalez raises two challenges to the sufficiency of the evi-
dence. First, he argues that sexual activity was not the dominant
purpose of the transportation because she also wanted to come to
the United States for her brother’s honeymoon. Second, he argues
that A.S.’s trip from the Bahamas to Miami (for which Gonzalez
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 6 of 20
6 Opinion of the Court 21-13950
paid) was an “innocent return trip” back to the United States for
her brother’s honeymoon.
We review de novo whether there was sufficient evidence
to support a conviction. United States v. Jiminez, 564 F.3d 1280,
1284 (11th Cir. 2009). In reviewing the sufficiency of the evidence,
we view the record in the light most favorable to the government,
resolving all reasonable inferences in favor of the verdict. Id. The
evidence is sufficient if a reasonable factfinder could have found the
defendant guilty beyond a reasonable doubt. Id. at 1284-85. It is
not necessary that the evidence exclude every reasonable hypothe-
sis of innocence or be wholly inconsistent with every conclusion
except that of guilt. United States v. Young, 906 F.2d 615, 618 (11th
Cir. 1990). The same standards apply when the district court acts
as the trier of fact as in this case. See United States v. Farley, 607
F.3d 1294, 1333 (11th Cir. 2010).
To prove a violation of 18 U.S.C. § 2423(a), the government
must show: (1) the defendant knowingly transported the victim in
interstate commerce, (2) the victim was under 18, and (3) the de-
fendant intended to engage in criminal sexual activity with the mi-
nor. 18 U.S.C. § 2423(a). While the government need not prove
that actual sexual activity took place to prove intent to engage in
criminal sexual activity, a defendant’s intent may be bolstered by
evidence that he engaged in sexual activities with the minor after
crossing state lines. United States v. Hersh, 297 F.3d 1233, 1245-47
(11th Cir. 2002).
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 7 of 20
21-13950 Opinion of the Court 7
Section 2423 is a provision of the Mann Act, a federal statu-
tory scheme aimed at prohibiting transportation for criminal sexual
activities. See 18 U.S.C. §§ 2421-2429. In Mortensen v. United
States, the Supreme Court reversed the convictions of two people
convicted under the Mann Act for transporting two girls across
state lines. 322 U.S. 369, 370, 377 (1944). While the girls had
worked as prostitutes before, they crossed state lines to take a va-
cation during which they did not engage in prostitution. Id. at 372,
374-75. The Court noted that the “dominant motive” of the trans-
portation must be immoral and held that in that case, the “sole pur-
pose” of the trip was “innocent recreation.” Id. at 374-75. It also
noted that the return journey to engage in prostitution did not
change the innocent purpose of the trip and that the journey must
be considered part of an “innocent round trip.” Id. at 375. The
Supreme Court later appeared to reaffirm the idea of an “innocent
round trip” by reversing an Eighth Circuit decision without opin-
ion citing Mortensen. See Becker v. United States, 348 U.S. 957(1955), rev’g, 217 F.2d 555, 556-57 (8th Cir. 1954) (affirming a con-
viction where a woman traveled from Wisconsin to Minneapolis
to see her family for Thanksgiving, intending to return to Wiscon-
sin, and the defendant begged her to come back and paid the cost
of her return trip).
We have “long declined to extend the doctrine of Mortensen
beyond its facts.” United States v. Lebowitz, 676 F.3d 1000, 1014
(11th Cir. 2012) (quotation marks omitted) (analyzing a conviction
under § 2251(a)). We have held that “dual purposes are sufficient
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 8 of 20
8 Opinion of the Court 21-13950
for a conviction, and [courts] need not concern [them]selves with
whether the illegal purpose was dominant over other purposes.”
Id. (quotation marks omitted).
We have not applied the “innocent round trip” exception.
Other courts of appeals have reversed § 2423(a) convictions where
criminal sexual activity occurred before transportation and there
was no evidence the defendant intended that the minor engage in
criminal sexual activity after transportation. See, e.g., United States
v. Broxmeyer, 616 F.3d 120, 129 (2d Cir. 2010) (persuasive author-
ity).
Here, there was sufficient evidence to support Gonzalez’s
conviction on Count Three because sexual activity did not need to
be the dominant purpose of A.S.’s trip and the “innocent round
trip” exception did not apply because her trip did not have a solely
innocent purpose. As to Gonzalez’s argument about the dominant
purpose, this Court does not require the illegal purpose to be the
sole or even dominant purpose. Lebowitz, 676 F.3d at 1014.
Therefore, it does not matter that A.S. may have also come to the
U.S. for innocent reasons, such as her brother’s honeymoon. View-
ing the record in the light most favorable to the government, there
was sufficient evidence to suggest one substantial purpose in trans-
porting A.S. was to engage in sexual activity. Jiminez, 564 F.3d at
1284. Gonzalez asked A.S. to visit him in the U.S. and made sexual
references. He tried to go to visit her but missed his flight, so she
came to see him. Also, within 45 minutes of her arrival they had
oral sex, which gives rise to a reasonable inference that Gonzalez
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 9 of 20
21-13950 Opinion of the Court 9
intended that she engage in sexual activity after traveling. Hersh,
297 F.3d at 1245-47 (intent to engage in sexual activity is bolstered
by evidence they engaged in sexual activities after crossing state
lines). In light of Gonzalez’s communications with A.S. before the
trip and the actual sexual activity upon her arrival, there was suffi-
cient evidence that a substantial reason Gonzalez transported A.S.
was to engage in sexual activity. His argument about the dominant
purpose fails.
Gonzalez’s argument that the “innocent round trip” excep-
tion applies also fails. This Court has declined to extend Mortensen
beyond its facts. Lebowitz, 676 F.3d at 1014. Even assuming ar-
guendo that this Court would apply Mortensen’s “innocent round
trip” doctrine more broadly, this case is distinguishable from
Mortensen. There, the defendants transported girls across state
lines solely for a vacation, and they returned from that trip to en-
gage in prostitution. Mortensen, 322 U.S. at 372, 374-75. By con-
trast, A.S.’s trip to the U.S. was not a round trip, as A.S. testified
that she lived in the Bahamas and was only visiting the U.S. when
she met Gonzalez. Thus when Gonzalez paid for her flight to the
U.S., she was not returning. And, as discussed above, A.S.’s trip did
not have a solely innocent purpose like the vacation in Mortensen
because Gonzalez intended to have sex with her when she arrived.
Because A.S. was not returning from a trip and part of the reason
she traveled was to engage in sexual activity, Gonzalez’s argument
that she engaged in an “innocent round trip” fails as well.
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 10 of 20
10 Opinion of the Court 21-13950
Therefore, there was sufficient evidence to support a conviction
under § 2423(a).
C. Was there plain error because the indictment did not
allege Fla. Stat. § 794.05(1) as the predicate crime un-
derlying Gonzalez’s conviction in Count 3 for trans-
porting a minor with intent to engage in criminal
sexual activity in violation of that predicate crime?
We usually review the sufficiency of an indictment de novo.
United States v. Pena, 684 F.3d 1137, 1147 (11th Cir. 2012). But
new challenges to an indictment’s sufficiency are reviewed for
plain error, which requires a showing that an error affected a de-
fendant’s substantial rights. United States v. Reed, 941 F.3d
1018, 1020-21 (11th Cir. 2019). To show an error affected substan-
tial rights, the appellant must demonstrate a reasonable probability
that, but for the error, the outcome of the proceeding would have
been different. Id.An indictment is sufficient if it (1) presents the essential ele-
ments of the charged offense, (2) notifies the accused of the charges
to be defended against, and (3) enables the accused to rely on a
judgment under the indictment for double jeopardy purposes.
Pena, 684 F.3d at 1147. A conviction cannot be upheld if the indict-
ment did not set forth the essential elements of the offense. Id. If
an indictment refers to the charging statute, the reference to the
statutory language adequately informs the defendant of the charge.
Id.USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 11 of 20
21-13950 Opinion of the Court 11
We have held that a state predicate offense was not a re-
quired element under a related statute, § 2422(b), so the jury was
not required to unanimously agree which state statute the conduct
would violate as long as it agreed that the conduct would violate
one of the listed statutes. United States v. Jockish, 857 F.3d 1122,
1126-27, 1133 (11th Cir. 2017).
Gonzalez did not challenge the indictment on this ground in
the district court. Therefore, our review is for plain error.
Even if it were error to not include the predicate state of-
fense, it was not plain because there is no caselaw from the Su-
preme Court or this Circuit holding that an indictment must in-
clude it. Aguilar-Ibarra, 740 F.3d at 592. And even if the govern-
ment needed to provide the state predicate offense in the indict-
ment, Gonzalez cannot show that the error prejudiced him. The
government filed a request for judicial notice of Fla. Stat. § 794.05and later filed an exhibit list with that statute. Thus, Gonzalez had
notice of the predicate offense. Therefore, the district court did not
plainly err by finding the indictment was sufficient.
D. Sufficiency of the evidence for the Count 2 convic-
tion for knowing receipt of the sexually explicit
video involving the use of a minor
Gonzalez raises two challenges to the sufficiency of the evi-
dence for this conviction. First, he argues that there was insuffi-
cient evidence of his knowing receipt. Second, he argues that the
statutory requirement that the production of the visual depiction
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 12 of 20
12 Opinion of the Court 21-13950
must involve the “use of a minor” implies that another person—
not just the minor—must be involved in the production.
Section 2252(a)(2) subjects to liability any person who
“knowingly receives . . . any visual depiction using any means or
facility of interstate or foreign commerce” if “the producing of such
visual depiction involves the use of a minor engaging in sexually
explicit conduct.” 18 U.S.C. § 2252(a)(2) (emphasis added). Section
2256 defines “sexually explicit conduct” as including sexual inter-
course; bestiality; masturbation; sadistic or masochistic abuse; or
lascivious exhibition of the anus, genitals, or pubic area. Id.§ 2256(2)(A).
A person knowingly receives child pornography when he
“intentionally views, acquires, or accepts child pornography on a
computer from an outside source.” United States v. Pruitt, 638
F.3d 763, 766 (11th Cir. 2011). “Inadvertent receipt of child por-
nography is not a violation of the statute.” Id. But the government
need not prove that the defendant saved, edited, or otherwise ex-
erted control over the visual depiction. Id.Proof of an element of a crime may be established through
circumstantial evidence or from inferences drawn from the con-
duct of an individual. United States v. Utter, 97 F.3d 509, 512 (11th
Cir. 1996). When the government relies on circumstantial evi-
dence, reasonable inferences, not mere speculation, must support
the conviction. United States v. Capers, 708 F.3d 1286, 1297 (11th
Cir. 2013). Evidence that a person sought out child pornography
over the internet, and has a computer containing
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 13 of 20
21-13950 Opinion of the Court 13
child-pornography images, can count as circumstantial evidence
that a person has knowingly received child pornography. Pruitt,
638 F.3d at 766-67.
Statutory interpretation begins with the plain language of
the statute. Wilson, 788 F.3d at 1310. The statutory scheme does
not define “use.” See 18 U.S.C. § 2256. Without a statutory defini-
tion, we look to the common usage of words, including dictionary
definitions, for their meaning. United States v. Silvestri, 409 F.3d
1311, 1333 (11th Cir. 2005). The plain meaning of a word must be
viewed in the context of the entire text. Wilson, 788 F.3d at 1310.
A statute should be construed so that no provision is superfluous.
Corley v. United States, 556 U.S. 303, 314 (2009). Where Congress
intends a narrow construction, it expresses that intent in the statu-
tory language. United States v. Smith, 508 U.S. 223, 229 (1993)
(noting the words “as a weapon” did not appear in 18 U.S.C.
§ 924(c)(1), so the statute punished any use of a firearm, not just
when it was used as a weapon).
The noun “use” is defined as “the fact, state, or condition of
being put to work, employed, or applied in this way.” Use, Ox-
ford English Dictionary Online, https://www.oed.com/view/En-
try/220635 (last visited March 8, 2023); see also Smith, 508 U.S. at
229 (“to convert to one’s service or to employ” (quotation marks
and brackets omitted)).
There was sufficient evidence to convict Gonzalez on Count
Two. First, there was sufficient evidence that Gonzalez knowingly
received the video. Inadvertent receipt of child pornography is not
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 14 of 20
14 Opinion of the Court 21-13950
sufficient, but a defendant needs only to intentionally accept the
images, not exert control over them. Pruitt, 638 F.3d at 766.
Here, viewing the evidence in the light most favorable to the
government, there was circumstantial evidence that Gonzalez
knowingly accepted the video of A.S. masturbating because he
sought out images of A.S. and the masturbation video was sent to
his phone. Id. at 766-67. Gonzalez requested “pussy shots” and
images of “that ass” and followed up requesting “to see [A.S.’s]
butt” through video or pictures. A.S. eventually sent Gonzalez a
video of her masturbating, and he did not say he did not want the
video. And he discussed viewing other sexual images of A.S., such
as the movies they made together. Thus, this evidence supports a
reasonable inference that his receipt of the video was not inadvert-
ent.
Gonzalez argues that this evidence does not show receipt
because his request for “pussy shots” occurred on September 6th,
and he did not receive the video of A.S. masturbating until Septem-
ber 30th, weeks after his request. He also argues that he never
acknowledged receiving the video because he messaged “I like it”
and “[s]o wet” before A.S. sent the video. But he replied “[s]o wet”
after the video was delivered, so this response supports a reasona-
ble inference that he acknowledged the video. Whether or not A.S.
sent the video based on Gonzalez’s request, the evidence need not
exclude every hypothesis of innocence, and it is reasonable to infer,
based on Gonzalez’s requests for images of A.S., that he did not
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 15 of 20
21-13950 Opinion of the Court 15
inadvertently receive the video of A.S. masturbating. Young, 906
F.2d at 618; Capers, 708 F.3d at 1297.
Second, there was sufficient evidence that the video in-
volved the “use of” a minor. Because the statute does not define
“use,” this Court relies on the plain meaning of the term “use” in
this context, which includes the fact, state or condition of being
employed. See 18 U.S.C. § 2256; Silvestri, 409 F.3d at 1333;
Use, Oxford English Dictionary Online. When read in context,
“use of” a minor includes depictions showing only the minor be-
cause the definition of sexually explicit conduct includes activities
involving only one person, such as masturbation. See 18 U.S.C.
§ 2256(2)(A). Also, contrary to Gonzalez’s argument, the statutory
language does not require that another person put the minor to
work or employ the minor because if Congress had intended to
prohibit only pornography created by another person, it could
have added that language. See Smith, 508 U.S. at 229. Therefore,
there was sufficient evidence that Gonzalez knowingly received
the video and that the video involved the “use of” a minor.
E. Did the district court err in imposing a five-level en-
hancement under U.S.S.G. § 4B1.5 because Gonzalez
engaged in a pattern of activity involving prohibited
sexual conduct?
We review factual findings for clear error and the applica-
tion of the Guidelines to the facts de novo. United States v. Dimi-
trovski, 782 F.3d 622, 628 (11th Cir. 2015). The government must
prove by a preponderance of the evidence that a sentencing
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 16 of 20
16 Opinion of the Court 21-13950
enhancement applies. Id. Sentencing courts may consider un-
charged and acquitted conduct in determining the appropriate sen-
tence. United States v. Rushin, 844 F.3d 933, 942 (11th Cir. 2016).
We may affirm a sentencing enhancement for any reason sup-
ported by the record, even if not relied upon by the district court.
United States v. Matchett, 802 F.3d 1185, 1191 (11th Cir. 2015).
A five-level sentence enhancement is required where the un-
derlying offense is a sex crime and the defendant engaged in a pat-
tern of activity involving prohibited sexual conduct. U.S.S.G.
§ 4B1.5(b)(1). A pattern of activity involving prohibited sexual con-
duct exists if, on at least two separate occasions, the defendant en-
gaged in prohibited sexual conduct with a minor. Id., comment.
(n.4(B)(i)). The enhancement applies even when the prohibited
sexual conduct involves the same minor victim. United States v.
Fox, 926 F.3d 1275, 1279 (11th Cir. 2019). The underlying offense
of conviction can constitute an occasion of prohibited sexual con-
duct. Id. at 1281. Prior instances of uncharged sexual conduct also
can constitute an occasion of prohibited sexual conduct. United
States v. Rothenberg, 610 F.3d 621, 625 n.5 (11th Cir. 2010).
The Guidelines define prohibited sexual conduct as:
(i) any offense described in 18 U.S.C. § 2426(b)(1)(A)
or (B); (ii) the production of child pornography; or (iii)
trafficking in child pornography only if, prior to the
commission of the instant offense of conviction, the
defendant sustained a felony conviction for that
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 17 of 20
21-13950 Opinion of the Court 17
trafficking in child pornography. It does not include
receipt or possession of child pornography.
U.S.S.G. § 4B1.5(b), comment. (n.4(A)). Section 2426(b)(1) defines
a prior sex offense as an offense:
(A) under this chapter [§§ 2421-2429], chapter 109A
[§§ 2241-2248], chapter 110 [§§ 2251-2260], or section
1591; or
(B) under State law for an offense consisting of con-
duct that would have been an offense under a chapter
referred to in subparagraph (A) if the conduct had oc-
curred within the special maritime and territorial ju-
risdiction of the United States
18 U.S.C. § 2426(b)(1) (section numbers added).
Section 2251 prohibits a person from using or persuading a
minor to engage in sexually explicit conduct for the purpose of pro-
ducing a visual depiction. 18 U.S.C. § 2251(a). Section 2422(b) pro-
hibits anyone from knowingly persuading or coercing an individual
under 18 to engage in prostitution or criminal sexual activity. Id.§ 2422(b); see United States v. Rutgerson, 822 F.3d 1223, 1233 (11th
Cir. 2016) (holding that offering to pay a child a sum of money to
engage in sexual activity violates § 2422(b)).
Here, the district court did not err in imposing an enhance-
ment for a pattern of activity involving prohibited sexual conduct
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 18 of 20
18 Opinion of the Court 21-13950
because Gonzalez paid A.S. for sex twice and produced child por-
nography of her.
F. Did the district court commit clear error when it
imposed a two-level enhancement under U.S.S.G. §
3C1.1 for obstruction of justice based on a cellmate’s
hearsay statement that Gonzalez attempted to hire
him to murder A.S.?
When reviewing the district court’s imposition of an en-
hancement for obstruction of justice, we review the district court’s
factual findings for clear error. United States v. Massey, 443 F.3d
814, 818 (11th Cir. 2006). Under § 3C1.1, a defendant’s offense level
is increased by two levels if: (1) he willfully obstructed or impeded,
or attempted to obstruct or impede, the administration of justice
with respect to an investigation, prosecution, or sentencing of his
instant offense; and (2) his obstructive conduct related to his of-
fense of conviction and any relevant conduct or a closely related
offense. U.S.S.G. § 3C1.1. Covered conduct includes “threatening
the victim of the offense in an attempt to prevent the victim from
reporting the conduct constituting the offense of conviction.” Id.,
comment. (n.4(K)).
At sentencing, the district court may only consider hearsay
if “there are sufficient indicia of reliability to support its probable
accuracy.” United States v. Baptiste, 935 F.3d 1304, 1315 (11th Cir.
2019) (emphasis omitted). A hearsay statement is reliable when it
is corroborated by other evidence in the record. United States v.
Ghertler, 605 F.3d 1256, 1270 (11th Cir. 2010).
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 19 of 20
21-13950 Opinion of the Court 19
Gonzalez’s challenge to this enhancement is that the hearsay
evidence on which the district court relied was unreliable. We con-
clude that the district court did not clearly err in finding that the
cellmate’s hearsay testimony was reliable for purposes of applying
the obstruction enhancement because it was corroborated by other
evidence. Ghertler, 605 F.3d at 1270. Agent Trimino testified that
the cellmate had been a reliable source in the past. Trimino also
testified that the cellmate reported the information about the mur-
der-for-hire plot three hours after Gonzalez was arrested. Trimino
further testified that the cellmate did not receive any promises in
exchange for his cooperation and only received money for a hotel
because he was homeless at the time of the interview.
The audio recording presented by the government at sen-
tencing also showed that the cellmate provided information that
could be known only to Gonzalez and law enforcement. He pro-
vided correct phone numbers for Gonzalez’s mother and sister and
stated Gonzalez’s mother lived near a taco stand. The cellmate also
knew that A.S. walked near Gonzalez’s mother’s home, even
though he incorrectly stated that A.S. lived in her own house. He
also knew details about Gonzalez, such as his fear of removal to
Costa Rica. He identified Gonzalez in a photo lineup even though
he could not remember his name. Trimino also testified that the
cellmate stated the details of Gonzalez’s arrest; however those de-
tails did not appear in the recorded interview. And the fact that
Gonzalez’s mother was confused when the cellmate called is not
inconsistent with there being a plan of which his mother was
USCA11 Case: 21-13950 Document: 46-1 Date Filed: 05/11/2023 Page: 20 of 20
20 Opinion of the Court 21-13950
unaware. We conclude that there was sufficient evidence to cor-
roborate the hearsay statement. Accordingly, we reject this chal-
lenge.
II.
For the foregoing reasons, the judgment of district court is
AFFIRMED.