                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-4668


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

            v.

CALVIN WINBUSH, a/k/a Good Game,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:12-cr-00021-HEH-1)


Submitted:    March 21, 2013                  Decided:   May 24, 2013


Before KEENAN, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert L.    Sirianni, Jr., BROWNSTONE LAW FIRM, PA, Winter Park,
Florida,    for Appellant.     Neil H. MacBride, United States
Attorney,   Jamie L. Mickelson, Assistant United States Attorney,
Richmond,   Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Calvin Winbush pled guilty to conspiracy to transport

a    minor     across          state       lines     for    prostitution,            18    U.S.C.A.

§ 2423(e)          (West       Supp.       2012)        (Count    One),        and        interstate

transportation            of        a    minor     for     prostitution,             18     U.S.C.A.

§ 2423(a) (West Supp. 2012), 18 U.S.C. § 2 (2006) (Count Two).

He     received          an     above-Guidelines            sentence      of      168        months’

imprisonment.            Winbush appeals his sentence, contending that the

district court (1) erred in applying an enhancement for use of a

computer,      U.S.           Sentencing         Guidelines      Manual     § 2G1.3(b)(3)(B)

(2011), and (2) failed to explain adequately its reasons for

varying upward from criminal history category II to category

III.    We affirm.

              In     Cleveland,           Ohio,     one    of    Winbush’s           prostitutes,

Sonora Armstrong, recruited a fifteen-year-old girl to work for

Winbush.       The girl had been living on the streets and dancing at

an after-hours club.                    Armstrong took pictures of her and posted

them     on    backpage.com,                an     internet       site     where           Winbush’s

prostitutes advertised their services.                           Winbush, Armstrong, the

minor,       and    another             prostitute       later    traveled       to        Richmond,

Virginia,          for        the       purpose     of     engaging       in     prostitution.

Armstrong      posted           additional         pictures      of   the       minor       on   the

internet site and the minor had sexual encounters with three

customers in Richmond.

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            At the sentencing hearing, the district court applied,

over    Winbush’s   objection,   a   two-level   increase    for   use   of   a

computer to entice, encourage, offer, or solicit a person to

engage in prohibited sexual conduct with a minor under USSG §

2G1.3 (b)(3)(B).       Winbush argued that the commentary to § 2G1.3

did not provide clear guidance on how the enhancement should be

applied and that the plain language of the Guidelines did not

apply in his case.

            Section 2G1.3(b)(3) states:

            If the offense involved the use of a
            computer or an interactive computer service
            to (A) persuade, induce, entice, coerce, or
            facilitate the travel of, [sic] the minor to
            engage in prohibited sexual conduct; or (B)
            entice, encourage, offer, or solicit a
            person   to  engage  in   prohibited  sexual
            conduct with the minor, increase by 2
            levels.

            Application Note 4 to § 2G1.3 states:

            Subsection (b)(3) is intended to apply only
            to the use of a computer or an interactive
            computer service to communicate directly
            with a minor or with a person who exercises
            custody, care, or supervisory control of the
            minor.    Accordingly, the enhancement in
            subsection (b)(3) would not apply to the use
            of a computer or an interactive computer
            service to obtain airline tickets for the
            minor from an airline’s Internet site.

            The district court first decided that Application Note

4 was inconsistent with the language of § 2G1.3(b)(3)(B).                 The

court    held   that   the   enhancement   applied   in     Winbush’s    case



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because     Armstrong,          working       in       concert       with    Winbush,       used   a

computer     to       advertise    the     minor         on    the     internet      and    solicit

customers        for    her.       The    court         held     that       such    conduct    fell

squarely within the ambit of § 2G1.3(b)(3)(B).

             Winbush’s total offense level was thirty-one.                                  He was

in   criminal         history     category         II    and     his    advisory         Guidelines

range      was        121-151     months.               Before       determining         Winbush’s

sentence,        the    district       court       reviewed          his    criminal       history,

which      included           assault,        drug       and     firearm           offenses,    and

aggravated        menacing.            However,         the    court       noted     Winbush    had

received very lenient sentences for most of his convictions.

With respect to the minor, the court observed that “her station

in   life        at     the     time     of     recruitment            made        her   extremely

vulnerable, and it was compounded by the defendant’s recruitment

of   her    and       placing    her     into      the        mainstream      of     prostitution

within his operation.”

             The court explained its decision to sentence Winbush

above the Guidelines range as a variance in light of the 18

U.S.C. § 3553(a) (2006) factors, despite structuring it as an

increase from criminal history category II to category III.                                     The

court stated that –

             [A]n upward variance to Total Offense Level
             31,   Criminal   History    Category   III   is
             appropriate   to   reflect   the   nature   and
             circumstances     of    the     offense,    the
             defendant’s   past   criminal   history   which

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               demonstrates    a   continuing    pattern   of
               criminal     violations     not     adequately
               represented   by   the   defendant’s   present
               criminal history, his demonstrated lack of
               respect of the law, and to deter future
               exploitation of minors for the purpose of
               prostitution.

               On appeal, Winbush first challenges the computer-use

enhancement.           As     he    did    before      the       district    court,     Winbush

relies    on    Application          Note    4       for    the       proposition     that   the

enhancement applies only when a computer is used to communicate

directly with the minor or the minor’s custodian.                                 Winbush also

argues that the enhancement is inapplicable because customers

who    responded       to     the    ads    Armstrong            posted   used    a   telephone

rather than a computer to contact the minor.                              In support of his

argument, Winbush relies on United States v. Patterson, 576 F.3d

431,     443        (7th    Cir.      2009),         which        found     the    enhancement

inapplicable          where    internet        ads         for     the    defendant’s     minor

prostitute were posted by another minor who was working for a

different pimp.

               We    conclude       that    Patterson            is   distinguishable        from

this     case        because        both    Winbush          and       Armstrong      exercised

supervisory control over the minor and Armstrong advertised her

services on the internet.                  More importantly, we agree with the

district court that the facts of this case fall squarely within

the plain language of the Guideline.                              Under § 2G1.3(b)(3)(B),

the focus is on the use of a computer by the defendant or his

                                                 5
agent to entice persons to engage in prohibited sexual conduct

with the minor.        Application Note 4, however, appears to address

only     the     situation    posited     in     § 2G1.3(b)(3)(A),            where     the

defendant uses a computer to contact the minor or her custodian

in order to entice the minor into prohibited sexual conduct.

Several        decisions     that   address        the    quite       different       “pimp

scenario”       in   subsection     (b)(3)(B)      have       found    the   enhancement

applicable.          United States v. Burnett, 377 F. App’x 248, 252

(3rd   Cir.      2010)(defendant     personally          communicated        by   computer

with individuals he enticed to have sex with the minor); United

States v. Vance, 494 F.3d 985, 997 (11th Cir. 2007) (defendant

used computer to direct undercover agent to provide underage

girls).        We agree with the reasoning of these decisions, and

conclude that the district court did not err in applying the

enhancement.

               Next, Winbush argues that the district court failed to

explain adequately its reasons for imposing a sentence above the

Guidelines range.          This court reviews a sentence for procedural

and    substantive      reasonableness         under     an    abuse    of    discretion

standard.        Gall v. United States, 552 U.S. 38, 51 (2007).                         The

same   standard       applies   whether      the    sentence      is    “inside,       just

outside, or significantly outside the Guidelines range.”                            United

States    v.     Rivera-Santana,       668     F.3d      95,     100-01      (4th     Cir.)

(internal citation and quotation marks omitted), cert. denied,

                                          6
133 S. Ct. 274 (2012).            In reviewing any variance, the appellate

court must give due deference to the sentencing court’s decision

because it “has flexibility in fashioning a sentence outside of

the    Guidelines      range,”     and    need    only       “set    forth      enough    to

satisfy the appellate court that it has considered the parties’

arguments and has a reasoned basis” for its decision.                                 United

States      v.    Diosdado-Star,    630    F.3d    359,       364,       366   (4th   Cir.)

(citing Gall, 552 U.S. at 56), cert. denied, 131 S. Ct. 2946

(2011); see also United States v. Carter, 564 F.3d 325, 328 (4th

Cir.     2009)      (sentencing    court       “must     make       an    individualized

assessment based on the facts presented”) (citation and emphasis

omitted).

                 Here, the court reviewed Winbush’s criminal history,

the nature and circumstances of the offense, and the need to

prevent Winbush from further exploiting minors.                                We conclude

that the district court adequately explained its reasons for the

upward variance by providing an individualized assessment based

on    the   facts     of   Winbush’s     offense       and    his    criminal      record.

Therefore, the district court did not abuse its discretion by

imposing a sentence of 168 months.

                 Accordingly, we affirm the district court’s judgment.

We    dispense      with   oral   argument       because      the    facts      and   legal




                                           7
contentions are adequately presented in the materials before the

Court and argument would not aid the decisional process.

                                                           AFFIRMED




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