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                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10277
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:17-cr-20205-UU-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DANIEL JOHN PYE,

                                                          Defendant-Appellant.

                       ________________________

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

                              (June 21, 2019)

Before WILSON, NEWSOM, and HULL, Circuit Judges.

PER CURIAM:
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      Daniel Pye appeals his convictions and sentences for traveling in foreign

commerce for the purpose of engaging in illicit sexual conduct. On appeal, Pye

first argues that the district court abused its discretion when it denied his motion

for a new trial based on newly discovered evidence and violations of Brady v.

Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).

Specifically, he argues that the government failed to disclose before trial certain

conversations between one of the government’s agents and certain witnesses.

Those conversations, he contends, demonstrate that the witnesses, who were

Haitian, had a motive to alter their testimony in exchange for immigration benefits.

He argues that these conversations also demonstrated that the government’s agent

and the witnesses perjured themselves at trial when they denied the existence of

promises for such benefits. Second, Pye contends that his sentence was

procedurally unreasonable because the district court improperly applied grouping

rules and a vulnerable-victim enhancement to his offense-level calculation. Third,

Pye asserts that his 480-month sentence was substantively unreasonable because

the district court indicated at sentencing that 420 months’ imprisonment may be

sufficient. Finally, Pye argues that the district court erred by imposing a $15,000

assessment pursuant to 18 U.S.C. § 3014, which did not exist at the time Pye

committed the offense conduct.




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                                          I

      Pye first contends that the district court erred when it denied his motion for a

new trial based on Giglio and Brady violations arising out of newly discovered

evidence. We review the district court’s denial of his motion for an abuse of

discretion. United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002).

      To obtain a new trial based on newly discovered evidence, the defendant

must show that (1) the new evidence was discovered after the trial, (2) the failure

to discover it was not due to a lack of due diligence, (3) the evidence is not merely

cumulative or impeaching, (4) the evidence was material, and (5) the evidence was

such that a new trial would probably produce a new result. United States v.

Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (quoting United States v. Ramos,

179 F.3d 1333, 1336 n.1 (11th Cir. 1999)).

      To succeed on a motion for a new trial based on a Brady violation, the

defendant must show that “(1) the prosecution suppressed evidence; (2) the

evidence was favorable to him; and (3) the evidence was material to the

establishment of his guilt or innocence.” United States v. Jeri, 869 F.3d 1247,

1260 (11th Cir.), cert. denied, 138 S. Ct. 529 (2017) (quoting United States v.

Beale, 921 F.2d 1412, 1426 (11th Cir. 1991)). Evidence that is favorable to the

defendant may include impeachment evidence. United States v. Flanders, 752

F.3d 1317, 1333 (11th Cir. 2014). Further, evidence is material “only if there is a


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reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” Jeri, 869 F.3d at 1260

(citation omitted). In other words, the defendant must establish that the favorable

evidence could reasonably undermine confidence in the verdict. Id. And to prevail

on a Giglio claim, “the defendant must demonstrate that the prosecutor knowingly

used perjured testimony, or failed to correct what he subsequently learned was

false testimony, and that the falsehood was material.” Vallejo, 297 F.3d at 1163–

64 (citation and quotation marks omitted).

      The district court did not abuse its discretion when it denied Pye’s motion

for a new trial based on newly discovered evidence because the government’s post-

trial disclosures, indicating that the government’s Haitian witnesses were granted

Deferred Action status to remain in the United States for an additional six months,

was not evidence that would have affected the jury’s verdict. Specifically, the trial

record and the testimony from the hearing on the motion for new trial

demonstrated that none of the witnesses believed they were promised immigration

benefits in exchange for their testimony and the post-trial disclosures indicated that

the witnesses did not know about the Deferred Action steps taken on their behalf

until after the trial. Pye has not established that there is new material evidence that

would probably lead to a different result at trial or help establish his innocence.

See Jernigan, 341 F.3d at 1287; Jeri, 869 F.3d at 1260.


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                                           II

      Next, Pye argues that his sentence is procedurally unreasonable because the

district court misapplied the grouping rules and the vulnerable-victim enhancement

in the Sentencing Guidelines. We review the reasonableness of a sentence under a

deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41

(2007). To determine the reasonableness of a sentence, the first question we must

address is whether the district court committed any procedural error, such as failing

to calculate, or improperly calculating, the appropriate Sentencing Guideline range

or selecting a sentence based on erroneous facts. Id. at 51.

      A party waives an objection when, regardless of the objections included in

the presentence investigation report (“PSI”) addendum, he does not articulate his

arguments when afforded the opportunity by the district court. United States v.

Jones, 899 F.2d 1097, 1102–03 (11th Cir. 1990), overruled in part on other

grounds, United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc).

Where the defendant fails to make objections before the district court, we will

review them only for plain error. United States v. Shelton, 400 F.3d 1325, 1328

(11th Cir. 2005). Under plain-error review, there must be an error, the error must

be plain, the error must have affected substantial rights of the defendant, and it

must seriously affect “the fairness, integrity or public reputation of judicial

proceedings.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016).


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      The sentencing court’s application of the Sentencing Guidelines is reviewed

de novo, including whether the court correctly grouped the offenses of conviction.

United States v. Doxie, 813 F.3d 1340, 1343 n.2 (11th Cir. 2016). This de novo

review also includes whether the district court correctly applied a

vulnerable-victim enhancement. United States v. Kapordelis, 569 F.3d 1291, 1315

(11th Cir. 2009). The district court’s factual findings are reviewed for clear error.

Id. at 1313. A finding of fact is clearly erroneous when, after reviewing all of the

evidence before it, we are “left with the definite and firm conviction that a mistake

has been committed.” United States v. Philidor, 717 F.3d 883, 885 (11th Cir.

2013) (quotation marks omitted). The district court may base its factual findings

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.” United States v. Ellisor, 522 F.3d 1255, 1273 n.25 (11th Cir.

2008) (quoting United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004)).

      “[O]nce the court of appeals has decided that the district court misapplied

the Guidelines, a remand is appropriate unless the reviewing court concludes, on

the record as a whole, that the error was harmless, i.e., that the error did not affect

the district court’s selection of the sentence imposed.” Williams v. United States,

503 U.S. 193, 203 (1992). For example, we have found that, even if the district

court erred in calculating a defendant’s Guideline range, such error would be


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harmless because the career-offender Guidelines raised his offense level such that

the application of the enhancement in question was irrelevant. See United States v.

Rubio, 317 F.3d 1240, 1244–45 (11th Cir. 2003).

      Section § 2G1.3 of the Guidelines provides, as relevant here, that the base

offense level for a defendant convicted of traveling to engage in a commercial sex

act or prohibited sexual conduct with a minor is 24. U.S.S.G. § 2G1.3(a)(4). The

section also provides for specific-offense-characteristic enhancements such as:

(1) a 2-level enhancement if the minor was in the custody, care, or supervisory

control of the defendant, § 2G1.3(b)(1)(B); (2) a 2-level enhancement if the minor

was unduly influenced to engage in prohibited sexual conduct, § 2G1.3(b)(2)(B);

(3) a 2-level enhancement if the offense involved the commission of a sex act or

sexual contact, § 2G1.3(b)(4)(A); and (4) an 8-level enhancement if the offense

involved a minor who was not yet 12 years old, § 2G1.3(b)(5).

      For the purposes of the care-and-custody enhancement, the Guidelines note

that it is “intended to have broad application and includes offenses involving a

victim less than 18 years of age entrusted to the defendant, whether temporarily or

permanently.” U.S.S.G. § 2G1.3 cmt. n.2(A). In determining whether the

enhancement for undue influence applies, the district court should consider

whether the defendant’s “influence over the minor compromised the voluntariness

of the minor’s behavior,” which may occur even without prohibited sexual


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conduct. U.S.S.G. § 2G1.3 cmt. n.3(B). Moreover, in a case where the defendant

is at least 10 years older than the minor, there is a rebuttable presumption that such

undue influence existed. Id.

      Separately, when a defendant is convicted on multiple counts, the Guidelines

instruct that the district court should “group ‘closely related’ counts of conviction

according to the rules in § 3D1.2 before determining each group’s offense level

and the combined offense level for all the counts.” Doxie, 813 F.3d at 1343 (citing

U.S.S.G. § 3D1.1). Pursuant to U.S.S.G. § 3D1.2, “counts are to be grouped

together for purposes of calculating the appropriate guideline range whenever they

involve substantially the same harm.” Id. at 1344 (quotation marks omitted). The

combined offense level is determined by taking the offense level for the grouping

with the highest offense level and applying a three-level enhancement if there are

two and a half to three groupings, or a four-level enhancement if there are three

and a half to five groupings. U.S.S.G. § 3D1.4.

      Section § 2G1.3, which covers prohibited sexual conduct with a minor,

provides that the multiple-count provision in § 3D1.4 applies if the offense of

conviction involved more than one minor. U.S.S.G. § 2G1.3(d)(1). In other

words, multiple counts involving more than one minor are not to be grouped

together by conviction under § 3D1.2, and if the conduct of an offense of

conviction includes travel or transportation to engage in prohibited sexual conduct


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with respect to more than one minor, whether or not specifically cited in the count

of conviction, each minor shall be treated as if contained in a separate count of

conviction. Id. cmt. n.6.

      Separately—again—a two-level enhancement applies under § 3A1.1(b)(1) if

the defendant knew or should have known that the victim was vulnerable.

U.S.S.G. § 3A1.1(b)(1). A vulnerable victim is one who is “unusually vulnerable

due to age, physical or mental condition, or who is otherwise particularly

susceptible to the criminal conduct.” Id. cmt. n.2. However, Application Note 2

provides that this enhancement should not apply if “the factor that makes the

person a vulnerable victim is incorporated in the offense guideline.” Id.

Specifically, “if the offense guideline provides an enhancement for the age of the

victim, this [enhancement] would not be applied unless the victim was unusually

vulnerable for reasons unrelated to age.” Id.

      Offense level 43—which is Pye’s reduced total offense level—is the highest

level in the Sentencing Table in § 5A. For the top offense level of 43, the

Guideline range for any criminal history category is a term of life imprisonment.

U.S.S.G. § 5A. Application Note 2 provides that a total offense level more than 43

should be treated as an offense level of 43. Id. cmt. n.2. Where the statutory-

maximum sentence of an offense is less than the minimum of the applicable

Guideline range, the Guideline sentence shall be the statutory maximum. U.S.S.G.


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§ 5G1.1(a). Moreover, the Guidelines provide that, where a defendant is convicted

of multiple counts, and the statutory maximum of one count is less than the total

punishment, the sentences for the other counts should run consecutively to the

extent necessary to produce a sentence equal to the total punishment. U.S.S.G.

§ 5G1.2(d). A conviction under 18 U.S.C. § 2423(b) carries a statutory maximum

term of imprisonment of 30 years. 18 U.S.C. § 2423(b).

      Here, the district court improperly applied the grouping rules, but the error

was harmless. It should have used the multiple-count adjustment in § 3D1.4 to

determine a combined adjusted offense level from five victim-based groups, not

three date-of-conviction groups. U.S.S.G. § 2G1.3(d)(1). A properly calculated

offense level, however, would not have reduced Pye’s final Guidelines range.

Under either calculation method, Pye’s total offense level is 43: Correctly creating

five victim-groups under § 3D1.4, then applying § 3D1.1 to add four points to the

highest offense level of those five groups, and then applying a five-point

enhancement under § 4B1.5(b)(1) because Pye engaged in a “pattern of activity

involving prohibited sexual conduct” yields a total offense level of 49 points. This

is one point less than the PSI’s calculation of 50 points. The error is harmless,

though, because whenever a total offense level is above 43, it is reduced to 43 and

the Guidelines provide a range of life imprisonment or the defendant’s statutory

maximum sentence. See Williams, 503 U.S. at 203.


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      What’s more, the same sentencing enhancements apply under either the

improper conviction-grouped calculation or the proper victim-based calculation.

Pye did not make any factual objections to his presentence investigation report

before the district court, and he therefore waived any objections to the facts

regarding the age of the five victims or his conduct with them. See Jones, 899 F.2d

at 1102–03. The district court did not plainly err in relying on the undisputed facts

when imposing the enhancements. Id. Pye is subject to the two-level enhancement

for a minor in his custody or care, § 2G1.3(b)(1)(B); the two-level enhancement for

undue influence over a minor to engage in prohibited sexual conduct,

§ 2G1.3(b)(2)(B); the two-level enhancement because his offense involved the

commission of a sex act, § 2G1.3(b)(4)(A); and the eight-level enhancement

because his § 2G1.3(a)(4) baseline conduct—engaging in prohibited sexual

conduct with a minor—involved a minor under twelve years of age,

§ 2G1.3(b)(5)(B).

      Finally, we need not determine whether the vulnerable-victim enhancement

was applied in error because removing the enhancement does not bring Pye’s

offense level below 43. See U.S.S.G. § 3A1.1 cmt. n.2. Any error in applying the

enhancement would have no effect on Pye’s substantial rights. See Molina-

Martinez, 136 S. Ct. at 1343.




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      Pye’s sentence was procedurally reasonable despite the district court’s errors

in calculating his Guideline range as to grouping and applying an enhancement for

vulnerable victims because even the properly calculated offense level would not

have changed his offense level such that a lower Guideline range would result.

                                         III

      Third, Pye argues that his sentence was substantively unreasonable. If the

sentence is procedurally sound—here, because the error is harmless—then we

consider the sentence’s substantive reasonableness and take into consideration the

extent of any variance from the Guideline range. Gall, 552 U.S. at 51. The district

court is afforded the discretion to weigh the 18 U.S.C. § 3553(a) factors. United

States v. Saac, 632 F.3d 1203, 1214–15 (11th Cir. 2011). The district court does

not need to state that it has considered each factor enumerated in § 3553(a), as an

acknowledgement that it has considered the § 3553(a) factors will suffice. United

States v. Turner, 474 F.3d 1265, 1281 (11th Cir. 2007). The § 3553(a) factors

provide the district court with discretion to select a sentence that serves the purpose

of, among other things, reflecting the seriousness of the offense, promoting respect

for the law, providing just punishment, affording adequate deterrence, and

protecting the public from further crimes of the defendant. 18 U.S.C. § 3553(a)(2).

The district court is permitted to “attach great weight to one factor over others.”

United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014) (quotation marks


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omitted). A district court abuses its discretion when, in imposing a sentence, it

fails to consider relevant factors, gives significant weight to an improper or

irrelevant factor, or commits a clear error of judgment when it considers the proper

factors. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).

The party seeking to prove the sentence unreasonable bears the burden of proof.

Id. at 1191 n.16. Where a sentence is consistent with the Guidelines’ application

of the § 3553(a) factors, it is probable that the sentence is reasonable. Id. at 1185.

We will vacate a sentence 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.” Id. at 1190 (quotation marks omitted).

      The district court did not abuse its discretion by imposing a substantively

unreasonable sentence. At the sentencing hearing, the judge stated that “there’s a

whole bunch of sentences that could be imposed” that are less than Pye’s

Guidelines sentence of 1,080 months’ imprisonment “that would afford adequate

deterrence.” And, in varying downward Pye’s sentence to 480 months, the judge

noted that Pye was not “irredeemable” or “one dimensional.” Combined with the

district court’s reasoned consideration of the § 3553(a) factors, Pye’s sentence does

not constitute a “clear error of judgment.” See Irey, 621 F.3d at 1190.




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                                           IV

      Finally, Pye contends that the district court plainly erred by imposing a

$15,000 assessment pursuant to 18 U.S.C. § 3014. See Shelton, 400 F.3d at 1328

(holding that where the defendant fails to make an objection before the district

court, we review for plain error).

      The Constitution prohibits the enactment of any ex post facto law. Peugh v.

United States, 569 U.S. 530, 538 (2013); see also U.S. Const. art. 1, § 9, cl. 3. A

law that changes the punishment of a crime or inflicts a greater punishment than

the law provided when the crime was committed is an ex post facto law. Peugh,

569 U.S. at 538. This protection “ensures that individuals have a fair warning of

applicable laws and guards against vindictive legislative action.” Id. at 544.

      Under 18 U.S.C. § 3014, a non-indigent defendant convicted of violating 18

U.S.C. § 2423(b) must pay a special assessment of $5,000 for each count of

conviction. See 18 U.S.C. § 3014(a). The section follows the date of enactment of

the Justice for Victims of Trafficking Act of 2015, which was enacted on May 29,

2015. Id.; see also Justice for Victims of Trafficking Act of 2015, Pub. L. No.

114-22, tit. I, § 101(a), tit. IX, § 905 (2015).

      The district court plainly erred by violating the Ex Post Facto Clause when it

imposed a $5,000 per count special assessment pursuant to 18 U.S.C. § 3014,

which was enacted three years after Pye’s criminal conduct had ended. The error


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affected Pye’s substantial rights by increasing his punishment, and we therefore

vacate the $15,000 special assessment.

      AFFIRMED IN PART, VACATED IN PART.




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