           Case: 14-12398   Date Filed: 02/19/2015   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12398
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:13-cr-60284-JIC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

BRANDON ROBINSON,
a.k.a. Ace,

                                                         Defendant-Appellant.

                      ________________________

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

                            (February 19, 2015)

Before HULL, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Brandon Robinson appeals his convictions for conspiracy to commit sex

trafficking of a minor, and sex trafficking of a minor, in violation of 18 U.S.C.

§§ 1591(a) and 1594(c). At his plea hearing, he made a factual proffer admitting

the crimes. Although the Government presented evidence that Robinson’s acts

were in, or affected, interstate commerce, neither the court nor the parties

referenced Robinson’s knowledge of this jurisdictional hook. Robinson argues, for

the first time on appeal, that the district court erred by accepting his guilty plea

because there was no evidence that he knew that his actions affected interstate

commerce.

      When appropriate, we review issues that are raised for the first time on

appeal for plain error only. United States v. Smith, 459 F.3d 1276, 1287 (11th Cir.

2006). Under plain error review, the defendant must show: “(1) error, (2) that is

plain, and (3) that affects substantial rights.” United States v. Rodriguez, 398 F.3d

1291, 1298 (11th Cir. 2005) (quotation omitted). We may then exercise our

discretion to notice a forfeited error, but only if the error seriously “affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation

omitted). Error is not plain unless it is clear or obvious under current law. United

States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993).

      Under 18 U.S.C. § 1591(a),

      Whoever knowingly—


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         (1) in or affecting interstate . . . commerce, entices . . . a person; or

         (2) benefits . . . from participation in a venture which has engaged
         in an act described in violation of paragraph (1), knowing, or in
         reckless disregard of the fact, that . . . the person has not attained
         the age of 18 years, and will be caused to engage in a commercial
         sex act, shall be punished . . . .

18 U.S.C. § 1591(a) (emphasis added). Under 18 U.S.C § 1594(c), “[w]hoever

conspires with another to violate section 1591 shall be fined under this title,

imprisoned for any term of years or for life, or both.”

      “Before entering judgment on a guilty plea, the court must determine that

there is a factual basis for the plea.” Fed.R.Crim.P. 11(b)(3). A defendant who

seeks reversal of a conviction after a guilty plea, on the ground that the district

court committed plain error under Rule 11, however, must show that the error

affected substantial rights. United States v. Dominguez Benitez, 542 U.S. 74, 81-

82, 124 S.Ct. 2333, 2339-40, 159 L.Ed.2d 157 (2004). Namely, a defendant must

“show a reasonable probability that, but for the error, he would not have entered

the plea.” Id. at 83, 124 S.Ct at 2340.

      In United States v. Evans, 476 F.3d 1176 (11th Cir. 2007), we held that the

term “knowingly” in § 1591(a) did not apply to the interstate commerce element,

because “the existence of the fact that confers federal jurisdiction need not be one

in the mind of the actor at the time he perpetrates the act made criminal by the

federal statute.” Evans, 476 F.3d at 1180 n.2 (quotation omitted). This case


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forecloses the issue. The Government did not need to present any evidence of

Robinson’s knowledge of the interstate commerce element at the time he

committed his crimes. The district court made no error.

        Robinson tries to explain away Evans by contending that the Supreme Court

overruled the case in Flores-Figueroa v. United States, 556 U.S. 646, 129 S.Ct.

1886, 173 L.Ed.2d 853 (2009). The Supreme Court addressed the interpretation of

18 U.S.C. § 1028A, which punishes anyone who “knowingly transfers, possesses,

or uses, without lawful authority, a means of identification of another person.” 18

U.S.C. § 1028A(a)(1). The Supreme Court, noting that an adverb that modifies a

transitive verb generally describes “how the subject performed the entire action,

including the object as set forth in the sentence,” held that the word “knowingly” in

that statute applied to the phrase “of another person.” Flores-Figueroa, 556 U.S.

at 650, 129 S.Ct. at 1890.

        Flores-Figueroa does not overrule Evans. Flores-Figueroa applies only to

an adverb modifying a substantive element of an offense, not a jurisdictional

element. Furthermore, Flores-Figueroa mentions neither Evans nor 18 U.S.C. §

1591.

        AFFIRMED.




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