     Case: 14-60019       Document: 00513004047         Page: 1     Date Filed: 04/14/2015




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

                                     No. 14-60019                                    FILED
                                   Summary Calendar                              April 14, 2015
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MARCO LAQUIN ROGERS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:12-CR-127


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Marco Laquin Rogers challenges his 480-month sentence, which is below
the sentencing range under the advisory Sentencing Guidelines and was
imposed following his jury-trial conviction for: transporting a minor (a four-
year-old child) for the purpose of engaging in commercial sexual acts, in
violation of 18 U.S.C. § 1591(a); and persuading, inducing, enticing, and
coercing a minor to engage in sexually explicit conduct for the purpose of


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-60019

producing a visual depiction of such conduct, in violation of 18 U.S.C. § 2251(a).
He claims the district court committed procedural error by applying sentencing
enhancements for: using a computer, pursuant to Guideline § 2G2.1(b)(6);
distributing pornographic images, pursuant to § 2G2.1(b)(3); and having
custody, care, or control over the minor victim, pursuant to § 2G2.1(b)(5). He
also claims procedural error by asserting the application of enhancements
based on the age of the victim, the offense involving sexual contact, and the
offense involving sadistic conduct resulted in impermissible double-counting.
He further asserts his sentence is substantively unreasonable because the
court failed: to adequately consider whether a sentencing disparity would
result, given his codefendant received a 278-month sentence; and to address
whether it considered his being sexually molested as a child.
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      But, because Rogers did not raise his objections to the application of the
enhancements at issue in district court, review is only for plain error. E.g.,
United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that
standard, Rogers must show a forfeited plain (clear or obvious) error that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he does so, we have the discretion to correct the error, but should do




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                                  No. 14-60019

so only if it seriously affects the fairness, integrity, or public reputation of the
proceedings. Id.
      Rogers claims the court erred in applying a computer-use enhancement.
He contends: a cell phone is not a “computer” for purposes of the enhancement;
and, because the evidence showed he used only a cell phone, the enhancement
is inapplicable. Although our court has not addressed whether a cell phone
falls within the definition of “computer” for purposes of Guideline § 2G2.1(b)(6),
at least two other circuits have concluded the use of a cell phone to make calls
and send text messages constitutes the use of a computer for purposes of the
enhancement. United States v. Mathis, 767 F.3d 1264, 1282 (11th Cir. 2014);
United States v. Kramer, 631 F.3d 900, 902–04 (8th Cir. 2011). Accordingly,
even assuming the court erred in applying the enhancement based on Rogers’
cell-phone use, any error was neither clear nor obvious. E.g., United States v.
Salinas, 480 F.3d 750, 759 (5th Cir. 2007).
      Further, Rogers challenges the sufficiency of the evidence supporting
this computer-use enhancement. Although Rogers claims no direct evidence
shows his communications were made to facilitate the travel of the child, a
reasonable inference can be drawn that Rogers communicated with the child’s
uncle either by phone or text in an effort to facilitate taking the minor. See,
e.g., United States v. Wilcox, 631 F.3d 740, 755 (5th Cir. 2011).
      Additionally, Rogers has failed to show that the court committed plain
(clear or obvious) error in applying enhancements based on distribution of a
sexually-explicit video, under Guideline § 2G2.1(b)(3), and, his custody or
control of the child, under Guideline § 2G2.1(b)(5). Distribution of sexually
explicit images by a codefendant can be used against the defendant as
“relevant conduct” where, as in this instance, the defendant participates in the
production of the material. See United States v. Odom, 694 F.3d 544, 547–48



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                                 No. 14-60019

(5th Cir. 2012). “A determination of relevant conduct is a finding of fact,”
United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009), which can never
constitute plain error, e.g., United States v. Lopez, 923 F.2d 47, 50 (5th Cir.
1991). Similarly, whether a victim was in the “custody, care, or supervisory
control” of the defendant is a factual determination. E.g., United States v.
Alfaro, 555 F.3d 496, 498–99 (5th Cir. 2009).
      As for his double-counting contention, Rogers acknowledges the
Guidelines at issue do not forbid the imposition of the challenged
enhancements, and he concedes his argument is foreclosed. See, e.g., United
States v. Garcia-Gonzalez, 714 F.3d 306, 315–16 (5th Cir. 2013).
      Finally, Rogers claims his sentence is substantively unreasonable
because the court failed to account for the possible sentencing disparity
between his and his codefendant’s sentence and his childhood sexual abuse.
Although Rogers failed to properly object to these bases, review is arguably for
abuse of discretion because he asserted them at sentencing. See, e.g., United
States v. Rodriguez, 523 F.3d 519, 526 & n.1 (5th Cir. 2008). In addressing the
§ 3553(a) sentencing factors, the court specifically addressed the need to avoid
unwarranted sentencing disparities, but noted the varying conduct between
Rogers and his codefendant, and stated it considered Rogers’ personal history
and circumstances, including the testimony of witnesses presented in
mitigation of sentence. Under the circumstances, Rogers fails to demonstrate
an abuse of discretion. See, e.g., Gall, 552 U.S. at 51–52.
      AFFIRMED.




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