           Case: 18-10395   Date Filed: 03/27/2019   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10395
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:16-cr-00171-MMH-JRK-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

ERWIN PHILLIPS BURLEY,
a.k.a. "Blue Jay",

                                                         Defendant-Appellant.
                      ________________________

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

                            (March 27, 2019)

Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 18-10395     Date Filed: 03/27/2019    Page: 2 of 4


      Erwin Burley appeals his sentence of 96 months of imprisonment for

knowingly persuading, inducing, and coercing a woman to travel in interstate

commerce with the intent for her to engage in prostitution. 18 U.S.C. § 2422(a).

Burley argues that his sentence is substantively unreasonable. We affirm.

      We review the substantive reasonableness of a sentence for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007). When reviewing the

reasonableness of an above-guideline sentence, we “may consider the extent of the

deviation but must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. We will

reverse a sentence for substantive unreasonableness only if we are “left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).

      The district court did not abuse its discretion when it varied upward to

address the magnitude of Burley’s sex trafficking crimes and the maltreatment of

his victims. The district court was troubled that Burley, who had been indicted for

two counts of forcible sex trafficking, 18 U.S.C. § 1591, one count of transporting

N.R. and S.W. in interstate commerce for prostitution, id. § 2421, and two counts


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of persuading the women to travel interstate to engage in prostitution, id.

§ 2422(a), was allowed “to plead guilty to the far least significant of the charges

brought against him [that involved only N.F.] [because that] ha[d] a significant

impact on his guidelines and his potential sentence.” And the district court

observed that Burley’s plea agreement reduced what would have been an advisory

sentencing range of 292 to 325 months of imprisonment to a range of 41 to 57

months of imprisonment. Burley’s mistreatment of his victims was, as the district

court stated, “egregious.” He advertised their services online to ensure they could

meet his demands to earn up to $2,000 each day, and when they failed to comply,

he beat them with a pistol, a telephone cord, and his hands. He demanded their

earnings, yet he fed them only one time a day and forced them to pay for their

contraception, which they often were unable to do. Burley also gave N.F. ecstasy

to stay awake and shaved her head. The district court reasonably determined that

Burley’s advisory guideline range was inadequate to “reflect the seriousness of

[his] actual offense conduct,” to “promote respect for the law,” to “adequately

deter” him from future similar conduct, and to “protect the public” in the light of

his “history and characteristics” that generated a criminal history category of V.

See 18 U.S.C. § 3553.




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      We cannot say that the district court committed a clear error of judgment in

determining that a sentence 39 months above the high end of Burley’s sentencing

range best served the objectives of sentencing. See Irey, 612 F.3d at 1189. Burley

argues that his “offense conduct . . . was already taken into account by” the four-

level enhancement he received for promoting a commercial sex act, United States

Sentencing Guidelines Manual § 2G1.1(b)(1) (Nov. 2016), but that enhancement

focuses on “fraud or coercion that occurs as part of the offense and anticipates no

bodily injury,” id. § 2G1.1 cmt. n.2. Burley also complains that the “district court

never explained exactly why [his] guideline range was inadequate,” but the district

court stated that it varied upward to address Burley’s use of profits to “advertise[]”

his victims and to “b[uy] drugs,” his “violen[ce]” against both women, and his acts

of “shav[ing] [N.F.’s] head, a brutally humiliating act” and “threatening [N.F.]”

after the “police had contacted her.” The explanation given by the district court

establishes it had a “reasoned basis” for its sentencing decision. See Rita v. United

States, 551 U.S. 338, 356 (2007). Burley’s sentence of 96 months of imprisonment,

which is well below his maximum statutory penalty of 240 months of

imprisonment, is reasonable. See United States v. Croteau, 819 F.3d 1293, 1310

(11th Cir. 2016).

      We AFFIRM Burley’s sentence.


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