           Case: 15-10058   Date Filed: 09/04/2015   Page: 1 of 11


                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10058
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:14-cr-00096-ACC-GJK-3



UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

                                  versus

JOSE CARMONA,
a.k.a. Hood,

                                                      Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (September 4, 2015)

Before HULL, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Jose Carmona appeals his 150 month sentence that the district court imposed

after a jury convicted him of conspiracy to commit sex trafficking of a minor, in

violation of 18 U.S.C. § 1594(c), and sex trafficking of a minor, in violation of 18

U.S.C. §§ 1591(a) and 2. For the reasons set forth below, we affirm.

                                          I.

      A grand jury indicted Carmona and three co-defendants (Xavier Villanueva,

Keith Romby, and Ashley Barnett) on one count of conspiracy to commit sex

trafficking and one substantive count of sex trafficking. Carmona pled not guilty

and proceeded to a jury trial.

      At trial, the prosecution introduced evidence that Carmona lived with

Romby, Villanueva, and others in Orlando, Florida in a house the men called “the

studio.” Barnett, who also lived in Orlando, befriended a 14-year old girl, victim

G.E. Barnett and G.E. began meeting unfamiliar men in hotels, where G.E. would

use drugs and have sex with the men. G.E. testified that she trusted Barnett, who

had given her food and shelter, so when she ran away from home in January 2013,

she went to Barnett. Barnett took her to the studio where the two met Romby and

Carmona and, together with the men, used methylenedioxymethamphetamine (or

MDMA) and marijuana and consumed alcohol.

      While at the studio but outside of G.E.’s earshot, Romby proposed to Barnett

that they prostitute G.E. that night. Barnett agreed, and she and Romby took G.E.


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into another room in the studio, where Romby told G.E. to undress. G.E., high on

drugs and apparently unaware of the purpose of the request, complied. Romby

then took sexually suggestive photographs of her with his cell phone. Carmona

dropped in and out of the room while Romby was photographing G.E. When he

finished, Romby sent the photographs from his cell phone to his email account and

then uploaded the photos to a website to solicit customers for sex with G.E.

      After the photos were uploaded, Romby, Barnett, and Carmona took G.E. to

a nearby hotel where they planned to have G.E. prostitute herself. Before they sent

her out to walk the street, Romby and Carmona each had sex with G.E., who was

still high on MDMA, to show her that they were in charge of her. When G.E.

asked for more drugs, Carmona and Romby told her that she had already used a lot

of MDMA and would have to “make that up,” which G.E. took to mean she would

have to prostitute herself and then give the proceeds to Carmona and Romby. Doc.

213 at 144-45.

      Around one or two in the morning, Romby sent G.E., still high on MDMA,

to the street to prostitute herself. After she had sex with a man in his car, she

returned to Carmona and Romby. The two told her she had done a good job and

sent her back out to the street. G.E. testified that she remembered nothing else

until the next day.




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      The next day, G.E. woke up next to Carmona at the hotel. By this time, she

testified, she had developed a crush on him. Shortly thereafter, she was returned to

the studio where Romby arranged for her to have sex with several more men in

exchange for rates he negotiated. Romby and Carmona kept G.E. high on MDMA

throughout the day, and when she asked for more they told her she would have to

“pull a trick so that they weren’t . . . wasting their [MDMA]” on her. Id. at 152.

      G.E. left the studio the next day. That evening, she checked her Facebook

account online and noticed that she had received a message from Carmona. In the

message, Carmona gave G.E. a phone number to call. She called, and Carmona

answered and asked her to return to the studio. G.E. testified that she complied

because she liked Carmona. When she returned to the studio, she took more

MDMA, and Romby told her to have oral sex with co-defendant Villanueva. She

complied and also had sex with several other men, then she returned home again.

      The next day, Barnett called G.E. and asked her to come back to the studio.

She offered to pick G.E. up and told G.E. that Carmona wanted to see her. G.E.

agreed because she liked Carmona and wanted to see him. But when Barnett

picked G.E. up, she did not drive to the studio. Instead, she took G.E. to

Villanueva’s house. There, Villanueva gave G.E. more MDMA, marijuana, and

alcohol and then arranged for her prostitution.




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      Over the next several days, Villanueva arranged for G.E. to have sex with a

number of men. G.E. gave Villanueva all of the money she earned, and Villanueva

gave G.E. MDMA, which she continued to take. When at times Villanueva left the

house, he would lock G.E. in a bathroom guarded by three women, one of whom

was armed. Approximately eight days after her initial interaction with Romby and

Carmona, the women guarding G.E. forced her out of the house. G.E. asked some

people nearby for help, and they brought her to a gas station where she eventually

called police.

      A jury convicted Carmona on both counts. The probation office prepared a

presentence investigation report (“PSI”) in anticipation of Carmona’s sentencing.

The PSI calculated a base offense level of 30 under U.S.S.G. § 2G1.3(a)(2), which

dictates offense levels for violations of § 1591. The PSI added a two-level

enhancement pursuant to U.S.S.G. § 2G1.3(b)(2) because “a participant otherwise

unduly influenced a minor to engage in prohibited sexual conduct” and a two-level

enhancement under U.S.S.G. § 2G1.3(b)(3)(B) because the “offense involved the

use of a computer or an interactive computer service” to solicit a minor to engage

in prohibited sexual conduct. PSI at ¶¶ 36-37. With additional enhancements not

at issue here, the PSI ultimately calculated Carmona’s total offense level to be 40.

With a criminal history category of III, Carmona faced a guidelines range of 360

months to life imprisonment.


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      At the sentencing hearing, Carmona objected to the undue influence and

computer use enhancements, but the district court overruled both objections. After

sustaining several objections that neither party challenges here, the district court

arrived at a total offense level of 34 and a criminal history category of III, which

yielded a guidelines range of 188 to 235 months’ imprisonment. The district court

sentenced Carmona to a below-guidelines sentence of 150 months’ imprisonment

(on each count, to run concurrently). This is Carmona’s appeal.

                                          II.

      We review the district court’s findings of fact for clear error and its

application of the Sentencing Guidelines to the facts de novo. United States v.

Martikainen, 640 F.3d 1191, 1193 (11th Cir. 2011). Under the clear error

standard, we “will not disturb a court’s findings unless we are left with a definite

and firm conviction that a mistake has been committed.” United States v. Clarke,

562 F.3d 1158, 1165 (11th Cir. 2009) (internal quotation marks omitted).

                                          III.

      Carmona first challenges the district court’s application to his offense level

of U.S.S.G. § 2G1.3(b)(2)(B), which provides for a two-level enhancement if “a

participant otherwise unduly influenced a minor to engage in prohibited sexual

conduct.” He contends that the evidence adduced at trial demonstrated that it was




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Romby who exercised influence over G.E., and that, unlike Romby, he was merely

present rather than an active participant in G.E.’s prostitution.

      When determining whether subsection (b)(2)(B) applies, the court should

closely consider the facts of the case to determine whether a participant’s influence

over the minor compromised the voluntariness of the minor’s behavior. U.S.S.G.

§ 2G1.3, comment (n.3(B)). Carmona contends that the only words G.E. testified

that he uttered to her were “good job” after she walked the streets outside the hotel

the first night of her prostitution. But that position ignores G.E.’s testimony about

Carmona’s conduct throughout the offense. G.E. testified that Carmona had sex

with her, worked side-by-side with Romby during the first days of G.E.’s

prostitution (including by telling her “good job” and “ask[ing] for more money”), 1

and then persuaded her to return to the house after she had left. These facts are

sufficient to support the enhancement the district court imposed.

      Even if we were to set aside whether Carmona himself exercised undue

influence in persuading G.E. to engage in prostitution, the plain language of the

commentary to the Sentencing Guidelines dictates that he can be held responsible

for his co-conspirator Romby’s conduct. Carmona has conceded that his co-

conspirator Romby exercised undue influence over G.E. And the undue influence

enhancement applies if “a participant” exercises undue influence over a victim.


      1
          See Doc. 213 at 213.
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U.S.S.G. § 2G1.3(b)(2)(B). A “participant” within the meaning of the

enhancement includes any “person who is criminally responsible for the

commission of the offense, but need not have been convicted.” U.S.S.G. §§ 2G1.2,

comment. (n.1), 3B1.1, comment. (n.1). Romby, also responsible for the

conspiracy to commit and commission of the sex trafficking of G.E., can therefore

also engage in undue influence for which his co-conspirator Carmona may be held

responsible. Although the district court did not rule on these grounds, we may

affirm on any basis supported by the record. See United States v. Hall, 714 F.3d

1270, 1271 (11th Cir. 2013). Thus, the district court did not err in imposing the

enhancement under U.S.S.G. § 2G1.3(b)(2)(B).

      Next, Carmona argues the district court erred in enhancing his guidelines

offense level pursuant to U.S.S.G. § 2G1.3(b)(3)(B), which provides for a two-

level enhancement “[i]f the offense involved the use of a computer or an

interactive computer service.” The guidelines commentary states that “computer”

has the meaning given in 18 U.S.C. § 1030(e)(1), which defines the term as “an

electronic, magnetic, optical, electrochemical, or other high speed data processing

device performing logical, arithmetic, or storage functions . . . .” U.S.S.G.

§ 2G1.3, comment. (n.1) (citing 18 U.S.C. § 1030(e)(1)).

      Carmona contends that: the government did not introduce evidence

demonstrating that the cell phone Romby used to photograph and solicit customers


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for G.E. was a computer, the enhancement was improper because it applies only

when the device is used to communicate directly with the victim or her guardian,

and there was no evidence that he used the computer or that it was foreseeable to

him that one of his co-conspirators would.

      Carmona’s first argument is foreclosed by United States v. Mathis, in which

we held that the use of a cell phone to call and send text messages constitutes the

use of a computer as the term is defined in 18 U.S.C. § 1030(e)(1) (the statute that

supplies the meaning of “computer” for purposes of the enhancement at issue).

767 F.3d 1264, 1283 (11th Cir. 2014), cert. denied, 135 S. Ct. 1448 (2015).

Romby (and G.E., at Romby’s direction) used his cell phone to communicate with

potential customers; this plainly is sufficient under Mathis.

      Carmona’s second argument also is foreclosed by our precedent. Although

the commentary to U.S.S.G. § 2G1.3 suggests that the enhancement “is intended to

apply only to the use of a computer or interactive computer service to

communicate directly with a minor” or guardian, comment. (n.4), we have held

that this commentary is patently inconsistent with the plain language of the

guideline and that the guideline’s plain language controls. See United States v.

Hill, 783 F.3d 842, 846 (11th Cir. 2015). In Hill, we affirmed the application of

the enhancement to a defendant’s use of a cell phone to place online ads offering

minors for sex. Id.at 845-46. Romby’s use of a cell phone to place online ads


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offering G.E. for sex is materially similar to the defendant’s use in Hill, by which

we are bound.

       Finally, Carmona’s third argument lacks merit. The plain language of the

enhancement demonstrates that Carmona’s offense level can be enhanced whether

he was the one using a computer or not, so long as “the offense involved” it.

U.S.S.G. § 2G1.3(b)(3). 2 Indeed, “the base offense level” for a defendant involved

in a conspiracy “shall be determined on the basis of . . . all reasonably foreseeable

acts and omissions of others in furtherance of the” conspiracy “that occurred

during the commission of the offense of conviction, in preparation for that offense,

or in the course of attempting to avoid detection or responsibility for that offense.”

Id. § 1B1.3(a)(1)(B). “Whether a co-conspirator’s act was reasonably foreseeable

to the defendant so that it qualifies as relevant conduct is a question of fact

reviewed for clear error.” United States v. Valarezo-Orobio, 635 F.3d 1261, 1264

(11th Cir. 2011). And the district court did not clearly err here. G.E. testified that

Carmona was present when Romby photographed her with his cell phone.

Although Carmona may not have been certain at that moment that the photographs

would be used to promote G.E.’s prostitution, once he and Romby told G.E. that

she would have to “make up” the cost of the MDMA they gave her by engaging in


       2
          Although the district court overruled Carmona’s objection to the enhancement on a
different ground, concluding that he had used a cell phone as a computer, we can affirm because
the record supports the court’s application of the enhancement. See Hall, 714 F.3d at 1271.

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prostitution, it became reasonably foreseeable that Romby would use the cell

phone (and the photographs taken with it) to facilitate the prostitution. 3 The

district court was correct to hold Carmona responsible for Romby’s conduct. See

Smith v. United States, 133 S. Ct. 714, 719 (2013) (“[A] defendant who has joined

a conspiracy . . . becomes responsible for the acts of his co-conspirators in pursuit

of their common plot.” (internal quotation marks and citation omitted)). The

enhancement was therefore proper.

                                              IV.

       For the reasons set forth above, we affirm Carmona’s sentence.

       AFFIRMED.




       3
        Carmona’s contention that any computer use was incidental and trivial is belied by the
record. G.E. testified that she and Romby on numerous occasions used Romby’s cell phone to
communicate with potential customers.
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