                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0386n.06

                                           No. 07-4381

                                 United States Court of Appeals
                                                                                      FILED
                                                                                  Jun 25, 2010
                                     FOR THE SIXTH CIRCUIT
                                                                            LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff - Appellee,                     )
                                                 ) Appeal from the United States
       v.                                        ) District Court for the Northern
                                                 ) District of Ohio
KEVIN L. MURPHY,                                 )
                                                 )
       Defendant - Appellant.                    )



Before: BOGGS, MOORE, and GIBSON,* Circuit Judges.


PER CURIAM.

       Kevin Murphy pled guilty to a five-count indictment, charging him with three counts of

transporting individuals for prostitution in violation of 18 U.S.C. §§ 2421 and 3583(k), and two

counts of transporting a minor for prostitution in violation of 18 U.S.C. §§ 2423(a) and 3583(k). The

district court sentenced Murphy to five concurrent identical sentences of 120 months’ imprisonment

followed by five years of supervised release. Murphy appeals his sentence, challenging the district

court's enhancement of his sentence for the use of a computer during the commission of an offense




       *
       The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit Court of
Appeals, sitting by designation.

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No. 07-4381
United States v. Murphy

and for misrepresenting the identity of a minor to facilitate the commission of the offense. He argues

that these enhancements violated his Sixth Amendment right to a trial by jury. We affirm.

       A summary of the government's recited facts at the guilty plea hearing included evidence that

Murphy ran an escort service and had several adult women and one juvenile female working for him.

Murphy had an arrangement with an uncharged individual associated with a national collegiate

fraternity, Alpha Phi Alpha. The fraternity held regional and national conventions, which lasted

from two to four days. Murphy 's escort service provided female dancers to entertain at these

conventions. Murphy would let the conventioneers know that the dancers were available for

prostitution. He had an agreement with the dancers that they would receive certain fees for acts of

prostitution. Murphy oversaw the operation, from transporting the women to the conventions to

making the hotel arrangements. One of the dancers, whom he brought to the conventions and who

worked as a prostitute, was under the age of eighteen at the time.

       Following the government's recitation of facts, the district court judge asked: "[d]o you have

any disagreement with it or do you wish to add anything to it?" Neither Murphy nor his attorney

contested the recited facts or offered any additional evidence.

       The district court applied two enhancements in computing Murphy's base offense level. The

court enhanced Murphy's sentence for use of a computer to persuade, entice, coerce or facilitate the

travel of a minor to engage in prohibited sexual contact, U.S.S.G. § 2G1.3(b)(3)(A), and for the

misrepresentation of the identity of the minor to induce, coerce, persuade, or facilitate the minor to

engage in prostitution, U.S.S.G. 2G1.3(b)(2)(A). On appeal, Murphy contends that his sentence



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No. 07-4381
United States v. Murphy

violates the Sixth Amendment because it was based on facts he never admitted and no jury ever

found beyond a reasonable doubt.

       It is true that the government's recitation of facts at the guilty plea hearing did not discuss

Murphy's use of a computer or evidence about Murphy’s misrepresentation of the identity of the

minor; however, the presentence report did. The presentence report discussed Murphy’s use of a

computer to advertise his escort service on the internet. The presentence report also outlined

evidence obtained from Murphy's computer, including "pictures of individuals and the minor used

to produce advertising fliers and cards" and other evidence that he "used his computer to

misrepresent the minor's identity to persuade, induce[,] entice, coerce and facilitate this minor to

engage in prostitution.” By failing to object to the presentence report, Murphy accepted all of the

factual allegations contained in it. United States v. Adkins, 429 F.3d 631, 632-33 (6th Cir. 2005).

       Furthermore, the district court did not violate Murphy's Sixth Amendment right to trial by

jury when it made factual findings regarding the application of two specific offense characteristics.

The district court sentenced Murphy within the Guidelines range and treated the Guidelines as

advisory. See United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (citing United

States v. Booker, 543 U.S. 220, 245-46 (2005)).

       For the forgoing reasons, the judgment of the district court is affirmed.




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