                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            DECEMBER 21, 2007
                               No. 06-15936                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 06-14007-CR-DLG

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                    versus

RICKY L. BARNETT,

                                                       Defendant-Appellant.


                         ________________________

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

                             (December 21, 2007)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:

     Appellant Ricky Barnett appeals his 80-month sentence for the use of
interstate commerce to persuade, induce, entice, and coerce a minor to engage in

sexual activity, 18 U.S.C. § 2422(b). Barnett argues that the district erred in

increasing his base offense level by two levels for unduly influencing a minor

because the “minor” was actually an adult undercover law enforcement officer.

Barnett does not contest that the enhancement was authorized by our holding in

United States v. Root, 296 F.3d 1222 (11th Cir. 2002); rather, he argues that Root

was wrongly decided and is due to be overturned by this Court en banc.

         We review a district court’s factual findings for clear error and its

application of the guidelines to those facts de novo. United States v. Kinard, 472

F.3d 1294, 1297 n. 3 (11th Cir. 2006). Further, a panel of this Court is bound by

the precedent of a prior panel “unless and until it is overruled by this court en banc

or by the Supreme Court.” United States v. Brown, 342 F.3d 1245, 1246 (11th Cir.

2002).

         The guidelines provide for a base offense level of 24 for a violation of 18

U.S.C. § 2422(b), along with a two-level increase if “a participant otherwise

unduly influenced a minor to engage in prohibited sexual conduct.” U.S.S.G.

§§ 2G1.3(a), (b)(2)(B) (2006). To that end, the application notes define a “minor”

as, inter alia, “an undercover law enforcement officer who represented to a




                                             2
participant that the officer had not attained the age of 18 years.” Id. at cmt. (n.1).1

Moreover, the commentary instructs that:

       In determining whether subsection (b)(2)(B) applies, the court should
       closely consider the facts of the case to determine whether a
       participant’s influence over the minor compromised the voluntariness
       of the minor’s behavior.

       In a case in which a participant is at least 10 years older than the
       minor, there shall be a rebuttable presumption, for the purposes of
       subsection (b)(2)(B), that such participant unduly influenced the
       minor to engage in prohibited sexual conduct. In such a case, some
       degree of undue influence can be presumed because of the substantial
       difference in age between the participant and the minor.

Id. at cmt. (n.3(B)).

       In Root, we addressed a similar two-level enhancement that applied where “a

participant otherwise unduly influenced the victim to engage in prohibited sexual

conduct,” and where the definition of “victim” included “an undercover law

enforcement officer who represented to a participant that the officer had not

attained the age of 16 years.” 296 F.3d at 1232 (quoting U.S.S.G.

§ 2A3.2(b)(2)(B) and application notes).2 A rebuttable presumption of undue

influence also applied when the offender was “at least 10 years older than the



       1
        We treat the guidelines commentary as authoritative. United States v. Ivory, 475 F.3d 1232,
1234 n.2 (11th Cir. 2007).
       2
         On November 1, 2004, the Sentencing Commission amended § 2A3.2(b)(2)(B) to insert
the term “minor” for “victim.” See Appendix C, Amendment 664. The amendment also created
§ 2G1.3, the provision at issue here. Id.

                                                3
victim.” Id. at 1233. First, we held that “[a] real victim is not needed under

§ 2A3.2(b)(2)(B) when an undercover agent is involved, as the focus is on the

offender’s conduct.” Id. at 1234. Second, we held that sentencing courts “may

also employ the rebuttable presumption of undue influence . . . when there is a 10-

year difference between the offender’s age and the age of the child portrayed by

the undercover agent.” Id.

      Upon consideration of the record and the parties’ briefs, we discern no error.

Here, Barnett does not challenge the district court’s finding that the presumption of

undue influence applied, i.e., that he was at least 10 years older than the fictional

age of the undercover officer, nor does he challenge the court’s finding that he

failed to rebut the presumption of undue influence such that the two-level

enhancement applied. These findings were correct under Root, and, in response to

Barnett’s claim that Root was wrongly decided and should be reversed, we are

bound by that precedent “unless and until it is overruled by this court en banc or by

the Supreme Court.” Brown, 342 F.3d at 1246. Accordingly, we affirm Barnett’s

sentence.

      AFFIRMED.




                                           4
