           Case: 17-10515   Date Filed: 10/26/2018   Page: 1 of 15


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10515
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:15-cr-00254-PGB-GJK-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

ROWY DE JESUS VASQUEZ,
a.k.a. Weezy,

                                                         Defendant-Appellant.

                       ________________________

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

                            (October 26, 2018)

Before ROSENBAUM, FAY, and JULIE CARNES Circuit Judges.

PER CURIAM:
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       Defendant Rowy Vasquez appeals his 360-month sentence after pleading

guilty to one count of sex trafficking of a minor. On appeal, Defendant argues that

the district court violated Federal Rule of Criminal Procedure 32(h) by failing to

provide adequate notice that it would impose a sentence above the advisory

guideline range. He also asserts that his sentence violates due process and is

procedurally unreasonable because the sentence was based on unproven

allegations. After careful review, we affirm.

I.     BACKGROUND

       A.     Facts1

       In April 2015, Defendant met K.C., a 14-year-old who had recently run

away from her parents’ home. Over the course of the next several weeks,

Defendant caused K.C. to engage in commercial sex acts for his own financial gain

and profit. He manipulated K.C. into prostitution by providing her with drugs and

alcohol. He and another individual also had sex with K.C. to initiate her into the

prostitution business.

       To assist communication between K.C. and potential prostitution customers,

Defendant provided her with an iPhone. Defendant set the prices for K.C.’s

services and advised K.C. to use condoms, not to let customers leave marks on her
1
  This factual background is taken from the facts Defendant admitted to during his plea colloquy
and the undisputed facts in the Presentence Investigation Report. See United States v. Wilson,
884 F.2d 1355, 1356 (11th Cir. 1989) (“The findings of fact of the sentencing court may be
based on evidence heard during trial, facts admitted by a defendant’s plea of guilty, undisputed
statements in the presentence report, or evidence presented at the sentencing hearing.”).
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body, and to avoid certain sex acts. Defendant stayed with K.C. at a “trap” house

where she met with customers obtained from online advertisements. Defendant

also rented hotel rooms for K.C. to meet with customers. K.C. met with

approximately 6 to 10 customers per day, resulting in daily earnings of

approximately $1,000. Defendant kept all of K.C.’s earnings.

       Eventually, K.C. left Defendant and returned home after she was raped and

assaulted by a customer. However, she later reunited with Defendant, and he once

again instructed her to engage in prostitution activities. Following K.C.’s return,

Defendant stood outside her hotel room with a gun for protection while she met

with customers.

       B.     Procedural History

       In December 2015, a federal grand jury charged Defendant with one count

of sex trafficking of a minor, in violation of 18 U.S.C. § 1591(a), (b)(2) (“Count

1”), and one count of attempted sex trafficking of a second minor, in violation of

18 U.S.C. §§ 1591(a), (b)(2) and 1594 (“Count 2”). Defendant subsequently pled

guilty to Count 1 pursuant to a written plea agreement, and in exchange, the

Government agreed to dismiss Count 2.2




2
  Although the plea agreement contained a sentence appeal waiver, it provided an exception if
Defendant received a sentence above the advisory guideline range. Defendant received a
sentence above the guideline range in the present case.
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      In preparation for sentencing, the probation officer prepared the Presentence

Investigation Report (“PSR”). The PSR assigned Defendant a base offense level of

30, pursuant to U.S.S.G. § 2G1.3(a)(2). He also received: (1) a two-level

enhancement under U.S.S.G. § 2G1.3(b)(2)(B) because Defendant unduly

influenced a minor to engage in prohibited sexual conduct; (2) a two-level

enhancement under § 2G1.3(b)(3) because the offense involved the use of a

computer; and (3) a two-level enhancement under § 2G1.3(b)(4)(A) because the

offense involved a commercial sex act. Defendant received a 3-level reduction for

acceptance of responsibility, resulting in a total offense level of 33.

      The PSR assigned Defendant a criminal history category of IV. The PSR

also noted that Defendant had charges pending in the Southern District of New

York for bank robbery and possession of a firearm in furtherance of a crime of

violence. Based on a total offense level of 33 and a criminal history category of

IV, Defendant’s range was 188 to 235 months’ imprisonment.

      Defendant filed objections to the PSR, challenging the two-level

enhancement for undue influence. He also objected to many of the PSR’s factual

statements pertaining to the present offense conduct. In response to Defendant’s

objections, the probation officer issued a revised PSR that removed the two-level

enhancement for undue influence. This resulted in an amended total offense level

of 31 and a guideline range of 151 to 188 months’ imprisonment.


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         At the sentencing hearing, the district court asked Defendant if he had any

objections to the factual accuracy of the PSR. Defendant stated that with the

removal of the enhancement for undue influence, he had no objections to the

factual accuracy of the PSR. The court then adopted the statements of fact in the

PSR and confirmed the guideline range of 151 to 188 months’ imprisonment.

         After hearing from Defendant, members of Defendant’s family, and the

prosecutor, the district court stated the factors it had considered in reaching its

sentencing decision. Although the court noted Defendant’s supportive family and

his youth as mitigating factors, the court identified many other troubling,

aggravating factors. First, the court noted that Defendant had a lengthy criminal

record, which started when he was a juvenile, and that by the time he was in his

early 20s, Defendant had joined a wing of the “notorious” Bloods gang.

         As to the offense conduct, the court observed that Defendant had acted as a

predator in his dealings with the 14-year-old K.C., and the court went into great

detail as to the specific predatory behavior Defendant engaged in, which the court

remarked on as being “simply horrific.” Specifically, Defendant had forced a

troubled 14-year-old girl to engage in nonconsensual sexual activity for money

(that Defendant kept) at least 144 times. 3 The court also mentioned that Defendant

often stood guard with a gun outside the hotel room where he was forcing K.C. to


3
    On one occasion, a “customer” had raped and assaulted K.C.
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prostitute herself, which itself heightened “the propensity for violence in these

events.” On other occasions, Defendant armed a 15-year-old prostitute with a

knife to guard K.C. Defendant struck K.C. whenever she spoke back to him. The

court also noted that Defendant had a history of drug sales and drug use, as well as

a history of firearm possession.

       Finally, citing examples, the court explained that in cases where there had

been sexual exploitation of a minor, it had often imposed sentences that were

“considerably higher” than the sentence the Government had recommended in the

present case, which recommendation was for a bottom of the Guideline-range

sentence of 151 months.4 Concluding with the observation that “sexual

exploitation of children is perhaps one of the most horrific crimes that I can

personally imagine,” and articulating the § 3553(a) factors, the court imposed a

360-month sentence of incarceration.

       Defendant objected to the substantive reasonableness of the court’s above-

guidelines sentence. Defendant has now appealed, but on appeal he no longer

argues that the sentence imposed was substantively unreasonable: that is, that the

sentence is too long. Instead, he makes two other arguments that were not raised at

sentencing: (1) that the district court should have given him advance notice that it


4
  The Government indicated that it recommended this sentence because Defendant had agreed at
an early stage of the proceedings to plead guilty, which spared the emotionally-troubled minor
girls whom he had prostituted the burden of having to testify at trial.
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was upwardly departing from the Guidelines and (2) that the sentence was

procedurally unreasonable because, in violation of Defendant’s due process rights,

the district court based its sentence on unreliable information.

II.   DISCUSSION

      A.     Federal Rule of Criminal Procedure 32(h)

      Defendant first argues that the district court essentially imposed an upward

departure without providing the required notice under Federal Rule of Criminal

Procedure 32(h). Because Defendant raises his lack of notice argument for the first

time on appeal, our review is for plain error. See United States v. Aguillard, 217

F.3d 1319, 1320 (11th Cir. 2000) (“Where a defendant raises a sentencing

argument for the first time on appeal, we review for plain error.”). In order for this

Court to notice plain error, there must be: “(1) an error (2) that is plain and (3) that

has affected the defendant’s substantial rights” and “(4) the error seriously affects

the fairness, integrity or public reputation of judicial proceedings.” United States

v. Madden, 733 F.3d 1314, 1320 (11th Cir. 2013) (alteration accepted) (quotations

omitted).

      Rule 32(h) provides that a district court “must give the parties reasonable

notice” before it “depart[s] from the applicable sentencing range on a ground not

identified for departure either in the presentence report or in a party’s prehearing

submission.” Fed. R. Crim. P. 32(h). Although Rule 32(h) requires that a court


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provide notice of its intent to impose a departure, it does not require a court to

provide notice of its intent to impose an upward variance based on the 18 U.S.C.

§ 3553(a) factors.5 Irizarry v. United States, 553 U.S. 708, 714 (2008). To

determine whether a sentence imposed outside of the guideline range constitutes a

departure or a variance, we consider “whether the district court cited to a specific

guideline departure provision and if the court’s rationale was based on [the court’s]

determination that the Guidelines were inadequate.” United States v. Kapordelis,

569 F.3d 1291, 1316 (11th Cir. 2009).

       Here, Defendant cannot show that the district court erred plainly or

otherwise by failing to provide notice under Rule 32(h) because the district court

imposed a variance, not a departure. Defendant appears to assert that the district

court’s reference to his extensive criminal history shows that it effectively imposed

an upward departure under U.S.S.G. § 4A1.3. Section 4A1.3 of the Sentencing

Guidelines provides in relevant part that the court may impose an upward

departure if a defendant’s criminal history category significantly underrepresents

his criminal history. U.S.S.G. § 4A1.3(a).


5
  The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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      Although the court mentioned Defendant’s lengthy criminal history, it did

not cite to § 4A1.3, or any other specific guideline departure provision for that

matter. Moreover, the court stated that the Guidelines were “inadequate” and that

it did not intend to follow the Guidelines given its consideration of several

§ 3553(a) factors, including the seriousness of the offense and the need to promote

respect for the law, to provide just punishment for the offense, and to protect the

public from Defendant’s future crimes. The district court’s reasoning and its lack

of reference to a specific guideline departure provision indicates that it applied a

variance, not a departure. See Kapordelis, 569 F.3d at 1316 (concluding that the

court imposed a variance rather than a departure, where the court did not cite a

specific guideline provision and based the defendant’s above-guidelines sentence

on the § 3553(a) factors). Significantly, the court noted in the statement of reasons

that it was imposing a variance based on several of the § 3553(a) factors.

      Because the district court imposed a variance and not a departure, it was not

required to provide notice under Rule 32(h). Defendant therefore cannot show

error, much less plain error.

      B.     The District Court’s Finding Regarding History of Firearms
             Possession

      As noted above, Defendant does not challenge the substantive

reasonableness of his 360-month sentence; stated another way, he does not argue

that the sentence was too long. Instead, he argues that the district court’s sentence
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was procedurally unreasonable because it violated Defendant’s due process rights.

Specifically, in explaining the reasons why it imposed the particular sentence on

Defendant, the district court mentioned, as one of many considerations,6 that

Defendant “[has] a history of firearm possession.” Defendant argues that in

making this statement, the court must have been improperly relying on

unsupported allegations: namely prior arrests that were later nolle prossed and

Defendant’s pending charges in the Southern District of New York. Such reliance,

Defendant argues, violates a defendant’s due process rights.

       Yet, Defendant never made this objection to the district court, which could

have clarified its basis for the statement. The Government therefore argues that we

should review this argument only for plain error. We agree. We have held that

procedural-reasonableness arguments raised for the first time on appeal are

reviewed for plain error. See United States v. Vandergrift, 754 F.3d 1303, 1307

(11th Cir. 2014). See also United States v. Candelario, 240 F.3d 1300, 1306 (11th

Cir. 2001) (“If the defendant . . . does not raise the constitutional objection . . . he

is entitled only to plain error review.”).

       To establish a due process violation based on the district court’s reliance on

false or unreliable information, the defendant must show that the evidence is


6
  The district court’s explanation of its reasons occupies 6 pages and 160 lines in the transcript
of the sentencing hearing. The isolated reference to Defendant’s “history of firearm possession”
occupies only one of those lines.
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materially false or unreliable, and that it actually served as the basis for the

sentence. United States v. Reme, 738 F.2d 1156, 1167 (11th Cir. 1984). Thus, we

first look at the evidentiary basis for the district court’s statement that there is a

history of firearm possession.

      As to Defendant’s pending bank robbery charge in the Southern District of

New York, the district court did not reference that as a consideration in its

imposition of sentence when the court explained its reasoning for the particular

sentence. It is true that at the beginning of the proceeding—prior to hearing from

Defendant or the Government as to their recommendations on a sentence—the

court had alerted Defendant to some of its concerns in order to allow the latter to

address them in his presentation. Specifically, the court was concerned about the

fact that Defendant was a drug dealer and a member of a gang; that Defendant may

have attempted to influence the testimony of the minor witnesses while he was in

jail; that Defendant had initiated one of the victims into the prostitution business by

having sex with her himself, at the outset and later; that Defendant “routinely

carried a gun” during his supervision of the prostitution activities; that, according

to one of the minor victims, Defendant had discharged a gun in the direction of a

home occupied by someone who owed him a drug debt; by a pending bank robbery

case in which Defendant had been charged and in which a firearm had been

discharged; and about a pattern of violence, including testimony from M.K. that


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Defendant had struck K.C. and had sometimes struck M.K. and threatened her with

force. The court asked defense counsel to address these matters to help the court

put them into context.

       Defense counsel responded as to the pending bank robbery charge, noting

that Defendant had not yet been convicted on that charge, that he was presumed

innocent, and that the court should not consider that charge in any way. He further

assured the court that, at any rate, he had spoken to the United States Attorney in

the New York case and that the latter did not believe that Defendant carried or

discharged a firearm during the robbery. After that response, the bank robbery

charge was never mentioned again by anyone nor referenced by the district court in

its explanation of the reasons for its sentence.

       As to the district court’s concern that Defendant had perhaps tried to

influence the minor witnesses while in jail, the prosecutor and defense counsel

offered a benign explanation as to the conduct leading to the court’s concern.

After that explanation, this particular matter was likewise never mentioned again

during the hearing, nor was it referenced by the court as a reason for its sentence.

Defense counsel did not specifically respond to the court’s other concerns.7



7
  In its own presentation, the Government noted that Defendant’s “criminal history is serious,”
starting when Defendant was a juvenile, after which Defendant “graduated to violent crimes at
age 18 and 19, when he was convicted in two separate cases of domestic violence.” There was
no objection by Defendant as to the prosecutor’s comments.
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      Defendant cannot show that the district court erred, much less plainly erred,

by concluding that he had a history with firearms because this finding was

supported by the undisputed facts in the PSR. United States v. Wade, 458 F.3d

1273, 1277 (11th Cir. 2006) (“It is the law of this circuit that a failure to object to

allegations of fact in a [PSR] admits those facts for sentencing purposes.”).

      With respect to those facts, the PSR noted that Defendant directed law

enforcement to the gun that had been in his possession, had guns around him “all

the time,” sometimes waited outside of K.C.’s hotel room with a gun for

protection, and had been witnessed shooting at someone based on a drug dispute.

Although Defendant initially objected to these factual statements, he withdrew

these objections at the sentencing hearing and therefore the district court was

entitled to rely on them. See United States v. Horsfall, 552 F.3d 1275, 1283–84

(11th Cir. 2008) (explaining that a defendant waives a sentencing objection by

affirmatively withdrawing that objection at the sentencing hearing); Wade, 458

F.3d at 1277.

      In short, there was ample evidentiary support for the district court’s

conclusion that that Defendant had a history of firearm possession, without any

need to consider the pending bank robbery charge. Moreover, the district court

never referenced that pending charge as a basis for its sentence.




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      Nevertheless, even if Defendant could establish error that was plain, he still

cannot show that the district court’s finding that he had a history with firearms

affected his substantial rights. The third prong of the plain error test requires the

defendant to show that the error “affected the outcome of the district court

proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005)

(quotations omitted). Because the district court’s statement regarding Defendant’s

history with firearms was only one of numerous factors that it considered when

imposing Defendant’s sentence, Defendant cannot meet his burden. Cf.

Vandergrift, 754 F.3d at 1312 (explaining that the defendant could not show that

his substantial rights were violated because the district court’s reliance on an

improper factor was only a “minor fragment” of its reasoning).

      The district court indicated that in making its sentencing decision, the court

had considered the § 3553(a) factors, including the seriousness of the offense,

Defendant’s extensive criminal history (at the age of 26, he already had a category

IV criminal history), and the need to promote respect for the law, to provide just

punishment for the offense, and to protect the public from the future crimes of

Defendant. Notably, the district court stated that it would have imposed a sentence

higher than 360 months’ imprisonment if Defendant had not entered an early guilty

plea. Clearly what, in large part, drove the sentence was conduct toward these

minor girls that the district court concluded to be horrific. Indeed, the court


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mentioned that it had repeatedly imposed sentences beyond what was requested by

the Government in cases involving the sexual exploitation of a minor. In short,

Defendant has not shown that he is entitled to relief.

III.   CONCLUSION

       For the reasons discussed above, Defendant’s sentence is AFFIRMED.




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