     Case: 12-50481       Document: 00512250659         Page: 1     Date Filed: 05/22/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 22, 2013
                                     No. 12-50481
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROBERTO REYES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7-11-CR-413-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Roberto Reyes appeals his sentence of 37 months of imprisonment on his
guilty plea conviction for using a facility in interstate commerce (i.e., the
internet and cell phones) to promote, manage, establish, and carry on “an
unlawful activity, that is, a business enterprise involving prostitution in
violation of Texas Penal Code 43.05 (Compelling Prostitution).” See 18 U.S.C.
§§ 1952(a)(3), 2. We affirm.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-50481

      Reyes contends that the district court erred procedurally when it assigned
him a base offense level of 24 under U.S.S.G. § 2G1.3(a)(4) on the basis that the
prostitution enterprise promoted sexual conduct with a minor prohibited by
Texas Penal Code § 43.05. Reyes contends that § 2G1.3(a)(4) cannot be applied
to a defendant who did not know that a minor was involved in a sex trafficking
enterprise. He denies knowing that a minor was among the four females who
were involved in the prostitution enterprise that he ran in Texas. According to
Reyes, the lower base offense level of 14 under U.S.S.G. § 2G1.1(a)(2) should
have been applied. Reyes had a category I criminal history. If § 2G1.1(a)(2)
applies, his guidelines sentencing range is 10 to 16 months; if § 2G1.3(a)(4)
applies, the range is 37 to 46 months. Additionally, Reyes asserts that his
sentence was substantively unreasonable as a result of the district court’s
misapplication of the Guidelines.
      Under the bifurcated review process adopted in Gall v. United States, 552
U.S. 38, 46 (2007), we first take up any claim that the district court committed
procedural error and, if no such error is found, we next examine the sentence for
substantive reasonableness. See United States v. Johnson, 619 F.3d 469, 471-72
(5th Cir. 2010). A district court commits procedural error “if it bases its decision
on an error of law or a clearly erroneous assessment of the evidence.” United
States v. Castillo, 430 F.3d 230, 238-39 (5th Cir. 2005) (internal quotation marks
and citation omitted).     Whether a district court has misinterpreted the
Guidelines and thereby committed an error of law presents an issue that we
analyze de novo. United States v. Lyckman, 235 F.3d 234, 237 (5th Cir. 2000).
Whether a district court has made mistaken factual findings or has misapplied
the Guidelines to those findings presents an issue that we analyze for clear
error. Id.
      Although the district court found that a minor was involved in Reyes’s
prostitution business, the court’s assignment of the § 2G1.3(a)(4) enhancement
was not based on a finding that Reyes knew of that involvement. And although

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                                 No. 12-50481

the district court found that Reyes’s assistant had knowledge that a minor was
involved, the district court did not assign the § 2G1.3(a)(4) enhancement on that
basis either. The district court stated that the enhancement applied because the
Texas statute, which was referenced in the indictment and which made Reyes’s
prostitution enterprise “prohibited sexual conduct” did not require that the
defendant know that a minor was involved in the activity.
      Reyes does not challenge the district court’s determination that, by his
own admission, a minor was in fact involved in his prostitution business. Thus,
Reyes fails to show that the district court’s procedural ruling was based on a
clearly erroneous assessment of the evidence. See Castillo, 430 F.3d at 238-39;
Lyckman, 235 F.3d at 237.        Nor does Reyes refute the district court’s
determination that under Texas law knowledge of a minor’s involvement is
unnecessary for a conviction for compelling prostitution. Thus, Reyes fails to
show that the district court’s procedural ruling was based on legal error. See
Castillo, 430 F.3d at 238-39; Lyckman, 235 F.3d at 237.
      Although    he    makes    a   conclusory     assertion    of   substantive
unreasonableness, Reyes does not brief the claim. Accordingly, the claim is
deemed waived. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir.
2010).
      AFFIRMED.




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