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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13209
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:15-cr-00009-RH-CAS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JAMES DEON KORFHAGE,

                                                          Defendant-Appellant.

                       ________________________

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

                              (April 3, 2017)

Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
Judges.

PER CURIAM:
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      After reserving his right to appeal the district court’s denial of his motion to

dismiss the indictment, James Korfhage pleaded guilty to enticing a minor to

engage in sexual activity “for which any person can be charged with a criminal

offense.” 18 U.S.C. § 2422(b). His conviction arose from his interactions with

L.K., a 17 year-old female whom he met online. After the two communicated

online and agreed to meet, Korfhage, who was 36 years old, drove from his home

in Georgia to Florida, where he met L.K. and took her to a hotel. The two engaged

in sexual activity and Korfhage took 17 pictures of L.K. engaging in that activity

as well as posing nude. By engaging in sexual activity with L.K., Korfhage

violated Florida law, which forbids “[a] person 24 years of age or older [to engage]

in sexual activity with a person 16 or 17 years of age.” Fla. Stat. § 794.05(1).

Korfhage was later arrested for his conduct with L.K. At the time of his arrest,

Korfhage attempted to delete the pictures he had taken of L.K., which were stored

on his cell phone. A forensic examination of the cell phone recovered those

pictures several months after the cell phone was initially searched.

      At sentencing, the district court calculated a total offense level of 36 and a

criminal history category of III, giving Korfhage a guidelines range of 235 to 293

months imprisonment. The district court then sentenced Korfhage to 240 months

imprisonment. This is his appeal.




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                                          I.

      Korfhage first contends that the charge against him should have been

dismissed because his actions did not violate § 2422(b) under the statute’s plain

meaning.

      Section 2422(b) states:

      Whoever, using the mail or any facility or means of interstate or
      foreign commerce . . . knowingly persuades, induces, entices, or
      coerces any individual who has not attained the age of 18 years, to
      engage in prostitution or any sexual activity for which any person can
      be charged with a criminal offense, or attempts to do so, shall be fined
      under this title and imprisoned not less than 10 years or for life.

18 U.S.C. § 2422(b). Korfhage contends that § 2422(b) criminalizes only sexual

activity that is of a nature that, by engaging in it, the minor commits a crime.

Korfhage concludes that because L.K., a minor, cannot be prosecuted for Florida

statutory rape, he did not commit a crime under § 2422(b). We disagree.

      “As with any question of statutory interpretation, we begin by examining the

text of the statute to determine whether its meaning is clear.” United States v.

Zheng, 306 F.3d 1080, 1085 (11th Cir. 2002) (quotation marks omitted).

Section 2422(b)’s plain language is not as limited as Korfhage contends. It

criminalizes enticing a minor to engage in sexual activity “for which any person

can be charged with a criminal offense,” 18 U.S.C. § 2422(b) (emphasis added),

not for which only the minor can be charged with a criminal offense. As a result,



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because Korfhage enticed L.K. to engage in sexual activity for which Korfhage

could have been charged under Florida law, he violated § 2422(b).

      Korfhage also contends that § 2422(b) is unconstitutionally vague. We

review de novo the district court’s rejection of a vagueness challenge. See United

States v. Paradies, 98 F.3d 1266, 1282 (11th Cir. 1996). “A statute is not

unconstitutionally vague if it ‘define[s] the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is prohibited and in

a manner that does not encourage arbitrary and discriminatory enforcement.’”

United States v. Waymer, 55 F.3d 564, 568 (11th Cir. 1995) (quoting Kolender v.

Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983)) (alteration in original).

The Supreme Court has noted that while the vagueness doctrine “focuses both on

actual notice to citizens and arbitrary enforcement,” the “more important” focus is

“the requirement that a legislature establish minimal guidelines to govern law

enforcement” so that the statute does not “permit a standardless sweep that allows

policemen, prosecutors, and juries to pursue their personal predilections.”

Kolender, 461 U.S. at 357–58, 103 S. Ct. at 1858 (quotation marks omitted).

      Korfhage argues that § 2422(b) is vague because the age of consent varies

from state to state, and as a result, it encourages arbitrary enforcement because it

“criminalizes behavior based on the happenstance of geography.” The provision is

no more vague than state boundary lines, which is to say not at all. And it does not


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encourage arbitrariness in enforcement by recognizing differences in state law;

differences that are dependent upon, or defined by, state law are not arbitrary.

                                          II.

      Korfhage also contends that the district court erred in calculating his United

States Sentencing Guidelines (2015) range by (A) applying § 2G1.3’s cross-

reference to § 2G2.1 for production of pornography, (B) applying a two-level

enhancement because Korfhage’s offense involved the use of a computer,

(C) applying a two-level enhancement for obstruction of justice, (D) refusing to

apply a two-level reduction for Korfhage’s acceptance of responsibility, and

(E) counting his prior conviction for marijuana possession when calculating his

criminal history score. We review de novo the district court’s interpretation of the

guidelines and we review for clear error its factual findings. See United States v.

Bohannon, 476 F.3d 1246, 1248 (11th Cir. 2007).

                                          A.

      Korfhage argues that the district court erred in applying a base offense level

of 32 after finding that one purpose of his enticement of L.K. was to produce a

visual depiction of their sexual activity. While § 2G1.3 provides a base offense

level of 28 for convictions under § 2422(b), it also provides that if “the offense

involved causing . . . a minor to engage in sexually explicit conduct for the purpose

of producing a visual depiction of such conduct” then the base offense level is


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determined by § 2G2.1 — if that level is greater than the one set in § 2G1.3.

U.S.S.G. § 2G1.3(c)(1). Section 2G2.1 provides for a base offense level of 32,

which is greater than the base offense level of 28 set out in § 2G1.3. U.S.S.G.

§ 2G2.1(a). Because the district court found that the government had proven by a

preponderance of the evidence that one of Korfhage’s purposes in enticing L.K.

was to produce a visual depiction of the conduct, it applied § 2G2.1’s base offense

level of 32. See Bohannon, 476 F.3d at 1251 (“The burden is on the government to

prove the factors that trigger the cross-reference by a preponderance of the

evidence.”).

      Korfhage contends that the district court clearly erred in finding that one of

the purposes of his enticement of L.K. was to take pictures of the sexual conduct.

At the sentence hearing, the court based its finding on the 17 photographs of L.K.

taken in the Florida hotel room. It did not clearly err in finding by a preponderance

of the evidence that a purpose of the enticement was to produce a visual depiction

of sexual conduct. Korfhage took the photographs of L.K. during the crime, which

is evidence that one of the purposes of his enticement of her was to take those

photographs.

                                         B.

      Next, Korfhage contends that the district court impermissibly engaged in

double counting by applying a two-level enhancement because his offense


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involved the use of a computer. Section 2G1.3(b)(3) of the guidelines provides for

a two-level increase “[i]f the offense involved the use of a computer or an

interactive computer service to . . . entice, encourage, offer, or solicit a person to

engage in prohibited sexual conduct with the minor.” U.S.S.G. § 2G1.3(b)(3).

      We review de novo claims of double counting. United States v. De La Cruz

Suarez, 601 F.3d 1202, 1220 (11th Cir. 2010). “Impermissible double counting

occurs only when one part of the Guidelines is applied to increase a defendant’s

punishment on account of a kind of harm that has already been fully accounted for

by application of another part of the Guidelines.” Id. (quotation marks omitted)

(emphasis added). And “[w]e presume that the Sentencing Commission intended

separate guidelines sections to apply cumulatively, unless specifically directed

otherwise.” United States v. Dudley, 463 F.3d 1221, 1227 (11th Cir. 2006).

Korfhage contends that because he was convicted of 18 U.S.C. § 2422(b), which

requires the use of “the mail or any facility or means of interstate or foreign

commerce,” his use of a computer was already accounted for by his base offense

level. His base offense level, however, did not fully account for Korfhage’s use of

a computer, because that offense level would have applied had he used any means

of interstate commerce, which is a consideration distinct from the specific harm

contemplated under § 2G1.3(b)(3) for use of a computer. As a result, the district

court did not engage in double counting by applying that two-level enhancement.


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                                          C.

      Korfhage also argues that the district court erred in applying a two-level

obstruction of justice enhancement based on his deletion of the cell phone pictures

of L.K. Under U.S.S.G. § 3C1.1, a two-level obstruction of justice enhancement is

proper if “the defendant willfully obstructed or impeded . . . the administration of

justice with respect to the investigation, prosecution, or sentencing of the instant

offense of conviction.” U.S.S.G. § 3C1.1. The enhancement applies where the

defendant destroyed or concealed “evidence that is material to an official

investigation or judicial proceeding,” but if that conduct “occurred

contemporaneously with arrest . . . it shall not, standing alone, be sufficient to

warrant an adjustment for obstruction unless it resulted in a material hindrance to

the official investigation or prosecution of the instant offense” Id. cmt. n.4(D).

“Under U.S.S.G. § 3C1.1, the threshold for materiality is conspicuously low.”

United States v. Massey, 443 F.3d 814, 821 (11th Cir. 2006) (quotation marks

omitted).

      The district court did not clearly err in finding that Korfhage acted willfully

by deleting the pictures and that he materially hindered the investigation against

him. At the time of his arrest, Korfhage was attempting to erase only incriminating

pictures on his phone. See id. at 819 (“We have interpreted ‘willfully . . . to mean

the defendant must consciously act with the purpose of obstructing justice.’”)


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(omission in original) (quoting United States v. Revel, 971 F.2d 656, 661 (11th

Cir. 1992)). As to its findings that deleting the pictures materially hindered the

investigation, the district court also did not clearly err. Those pictures were

compelling evidence that Korfhage violated § 2422(b), and it took months for law

enforcement to recover them. As a result, his deletion was a material hindrance to

the investigation and prosecution of that crime. 1

                                                D.

       Korfhage also contends that the district court erred in declining to apply a

two-level reduction for his acceptance of responsibility. The guidelines provide

for a two-level reduction “[i]f the defendant clearly demonstrates acceptance of

responsibility for his offense.” U.S.S.G. § 3E1.1(a). At the sentence hearing, the

district court noted that while Korfhage “was quite candid” and “honest” during his

allocution,2 other considerations, including the deletion of the cell phone pictures,

weighed against applying the two-level reduction.

       Korfhage contends that, in addition to his honesty during his allocution,

additional factors, including the fact that he pleaded guilty, his recognition that his

       1
          The district court alternatively found that the obstruction of justice enhancement applied
because testimony at the sentence hearing showed that Korfhage, while in custody following his
arrest, asked other inmates to contact L.K. and threaten or encourage her to change her
testimony. Because we conclude that the obstruction of justice enhancement was proper based
on the deletion of the pictures, we need not address Korfhage’s argument that the district court
erred in alternatively finding that he solicited inmates to get L.K. to change her testimony.
       2
         The district court also took into account the fact that had Korfhage taken the same
actions in his home state of Georgia, he would not have committed statutory rape.
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actions impacted L.K. and her family, and his expressions of regret and remorse

weighed strongly in favor of applying the acceptance of responsibility reduction.

      However, “[a] defendant who pleads guilty is not entitled to a reduction for

acceptance of responsibility as a matter of right.” United States v. Wade, 458 F.3d

1273, 1279 (11th Cir. 2006). While “pleading guilty before trial, combined with

truthful admission of the conduct comprising the offense and relevant conduct,

. . . constitutes significant evidence of acceptance of responsibility,” that evidence

“may still be outweighed by conduct of the defendant that is inconsistent with

acceptance of responsibility.” Id. For example, conduct resulting in an obstruction

of justice enhancement “ordinarily indicates that the defendant has not accepted

responsibility for his criminal conduct,” although there may be “extraordinary

cases in which adjustments” both for obstruction of justice and acceptance of

responsibility could apply. U.S.S.G. § 3E1.1 cmt. n.4.

      The district court did not clearly err in finding that Korfhage had not

demonstrated acceptance of responsibility. As we have discussed, the district court

properly applied an obstruction of justice enhancement because Korfhage had

attempted to destroy material evidence when he deleted the pictures of L.K. It did

not clearly err in finding that this was not an extraordinary case where adjustments

for both obstruction of justice and acceptance of responsibility should apply.




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                                                E.

       Korfhage also appeals his criminal history calculation. As part of that

calculation, the district court added one criminal history point based on his prior

conviction for possession of marijuana. Korfhage contends that the counting of

that conviction was erroneous because the only evidence offered to prove that

conviction took the form of computer screenshots from a county clerk’s office.

While Korfhage initially objected to using those screenshots as the evidentiary

basis for applying the criminal history point, he later indicated more than once at

the sentence hearing that his objection had been resolved. See United States v.

Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (“It is . . . established law that the

failure to object to a district court’s factual findings precludes the argument that

there was error in them.”); United States v. Masters, 118 F.3d 1524, 1526 (11th

Cir. 1997) (declining to review a sentence imposed above the guideline range

where the defendant withdrew his objection to the upward departure). 3

       AFFIRMED.




       3
         Korfhage also appeals the district court’s decision to add one criminal history point
based on his prior convictions for disorderly conduct. With the addition of that criminal history
point, Korfhage’s criminal history score was five, which established a criminal history category
of III. To the extent the district court erred, the error was harmless because removing that
criminal history point would still result in Korfhage having a criminal history category of III.
See United States v. Wilson, 901 F.2d 1000, 1002 n.2 (11th Cir. 1990).
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