                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4806


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LLOYD MACK ROYAL, III,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:09-cr-00048-AW-1)


Submitted:   July 21, 2011                  Decided:    August 10, 2011


Before KING and    DAVIS,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


David W. Lease, SMITH, LEASE & GOLDSTEIN, LLC, Rockville,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, Thomas E. Perez, Assistant
Attorney General, Jessica Dunsay Silver, Lisa J. Stark,
Attorneys, Civil Rights Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      A jury convicted Lloyd Mack Royal, III, of seven offenses:

conspiracy     to       commit       sex   trafficking,          18       U.S.C.         §       371;    sex

trafficking,        18    U.S.C.       §    1591;         possession       of        a       firearm     in

furtherance        of    a     crime       of    violence,          18     U.S.C.            §    924(c);

conspiracy        to     distribute        narcotics,          21        U.S.C.          §    846;      and

distribution of narcotics to persons under the age 21, 21 U.S.C.

§ 859. The district court sentenced Royal to a total of 37 years

of imprisonment.

      On   appeal,           Royal     does      not       challenge           his       convictions.

Instead,     he     argues       that      the        district      court        erred           in     five

respects in calculating his sentence. Namely, he maintains that

the   district          court    erred          in       applying        the    following               four

sentencing guidelines enhancements: (1) vulnerable victim; (2)

use   of   a      computer;          (3)    obstruction             of     justice;              and     (4)

leadership role. In addition, he assigns error in the district

court’s consideration of conduct that was not proven to the jury

beyond a reasonable doubt. As explained below, we affirm.



                                                 I.

      In April 2007, Royal met seventeen-year-old Melissa P. 1, a

homeless, drug-using, high-school dropout. Melissa’s mother was


      1
       Because the victims were minors at the time                                                of     the
offense, the record refers to them by first name only.
                                                     2
recently divorced and living in a homeless shelter and Melissa

had no contact with her family. Melissa survived by stealing

food, sleeping in storage bins, and by spending time in fast-

food    restaurants        and    the    basements               of     apartment        buildings.

Several hours after meeting Melissa, and after Royal gave her

alcohol and marijuana, Melissa had sex with Royal and his cousin

because she needed a place to sleep.

       Royal     arranged    for     Melissa           to    stay      at    the    residence      of

Shantia        Tibbs   and       subsequently,              the       residence          of     Angela

Bentolila.       Shortly     thereafter,           Melissa             introduced         Royal     to

another seventeen-year-old girl named Stephanie. After meeting

Stephanie, Royal gave both girls alcohol and marijuana. He later

instructed them to dance naked on a bed and repeatedly engaged

in sexual acts with them. While Melissa lived with Bentolila,

Royal repeatedly assaulted Melissa, threatened to kill her and

harm her sister, and anally raped her.

       Several     weeks     after      meeting         both          girls,      Royal       directed

Tibbs     to    find   customers        willing             to    pay       for    sex    with    the

teenagers. Tibbs contacted Mark Witherspoon, who agreed to pay

for sex. The same day, Tibbs and Bentolila prepared Melissa and

Stephanie for prostitution by providing them with provocative

clothing,        styling     their      hair           and       applying         their        makeup.

Bentolila       provided     Royal      with       a    vehicle          and      cell    phone    to

facilitate the commercial sex. Tibbs drove Melissa and Stephanie

                                               3
to Witherspoon’s Washington, D.C. residence and watched while

the    girls     engaged    in    sex    acts      with   Witherspoon.      Afterwards,

Tibbs collected money from Witherspoon and gave that money to

Royal.

       In May 2007, Royal observed one of Melissa’s friends on the

social internet website MySpace and directed Melissa to contact

the girl because he “needed another girl” and “thought she was

gorgeous.” J.A. 267. At Royal’s direction, Melissa “typed” the

friend, Ilana, and later called her in order to facilitate the

introduction. J.A. 267. Ilana was fifteen years of age. On May

8, 2007, Royal, along with an acquaintance, took Melissa and

Ilana to an apartment where Royal and the acquaintance converted

powder cocaine into crack cocaine. At that time, Royal provided

Melissa     and     Ilana      with     cocaine,      phencyclidine         (PCP),   and

ecstasy. After providing the girls with drugs, Royal drove them

to Tibbs’ residence where she provided Ilana with clothing and

Melissa with condoms and a dental dam for use during commercial

sex. Royal then took the girls to a hotel, where they both

engaged in commercial sex acts with a customer. The following

day,     Royal     again      provided       the    girls    PCP     and    facilitated

commercial sex with the same customer.

       Toward     the   end      of   May,   law     enforcement     received    a   tip

concerning Royal’s activities and questioned Melissa, who denied

having    any     knowledge.      Melissa       informed    Royal,    who    instructed

                                              4
Melissa to “lie” and state that he [Royal] “had no idea [about

her] age.” J.A. 210-11.

     In addition to the sex trafficking, from September 2006

through May 2007, Royal arranged through Crystal Brown, a former

girlfriend, the purchase of cocaine from a source in New York.

Brown drove Royal to the source and provided him with the cash

to purchase the cocaine. Brown also permitted Royal to sell and

store marijuana and cocaine from her residence. From November

2006 to May 2007, Bentolila bought cocaine from Royal dozens of

times. Royal often brought drugs to Bentolila’s house, which

Bentolila shared with Melissa and Stephanie as well as others.

In April 2007, Royal forced Melissa to use cocaine, a drug she

had never tried.

     On January 28, 2009, Royal was indicted for conspiracy to

commit   sex   trafficking,   sex   trafficking    and   possession   of    a

firearm in furtherance of a crime of violence. Nearly six months

later, the grand jury returned a second superseding indictment

charging Royal with conspiracy to commit sex trafficking, three

counts   of    sex   trafficking,     possession    of    a   firearm      in

furtherance of a crime of violence, conspiracy to distribute

controlled dangerous substances, and two counts of distribution

of controlled dangerous substances to persons under the age of

twenty-one.



                                     5
     On February 3, 2009, Royal and Bentolila were in adjoining

holding cells waiting to make an appearance in the instant case.

Royal   instructed      Bentolila       to       “Do    the   right    thing      and   not

snitch.”     J.A.    130.    Bentolila        explained         that   she    understood

Royal’s directive to mean she should not say anything at all.

     After a trial lasting from March 16, 2010, to March 24,

2010, Royal was convicted by a jury of all counts. However, on

the drug conspiracy count, the jury found Royal not guilty of

one of the three objects of the drug conspiracy (i.e., Royal was

found guilty of conspiring to distribute cocaine and marijuana,

but not PCP). On July 19, 2010, the district court conducted

Royal’s    sentencing       hearing.    At       the    sentencing     hearing,       Royal

challenged    the    vulnerable        victim      enhancement,        the     use    of   a

computer enhancement, the obstruction of justice enhancement and

the aggravating role in the offense enhancement.

     The     district       court      concluded          the     vulnerable         victim

enhancement was applicable because Melissa, Stephanie and Ilana

came from “dysfunctional families,” were “allowed to roam and

hit the streets, and one was living essentially in a dumpster.”

J.A. 336-67. The court also cited the fact that Royal gave them

drugs in order to take further advantage of them.

     The     court    concluded        that       the    obstruction         of   justice

enhancement was justified because Royal sought to “influence”

Bentolila by telling her not to snitch. J.A. 367. The district

                                             6
court   concluded       that        the   use    of     a    computer         enhancement    was

warranted      because       Royal    “directed         and      caused       it[s]”   use   and

directed Melissa to recruit Ilana. In total, the court sentenced

Royal to an aggregate sentence of 37 years.

       Royal filed a timely notice of appeal on July 23, 2010. We

have jurisdiction pursuant to 28 U.S.C. § 1291.



                                               II.

       We     review    a    sentence         imposed       by    a    district     court    for

reasonableness,         applying          a   deferential             abuse    of   discretion

standard. See Gall v. United States, 552 U.S. 38, 51 (2007). The

first step in the court’s review of a sentence is to “ensure

that    the    district       court       committed         no    significant       procedural

error, such as . . . improperly calculating [ ] the Guidelines

range . . . [or] selecting a sentence based on clearly erroneous

facts.” Id. In assessing whether a sentencing court has properly

applied the Guidelines, the court reviews factual findings for

clear   error     and       legal    conclusions        de       novo.    United    States    v.

Llamas, 599 F.3d 381, 387 (4th Cir. 2010) (citing United States

v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008)).

                                                A.

       Royal first challenges the district court’s application of

the vulnerable victim adjustment pursuant to U.S.S.G. § 3A1.1,

which provides that a two-level adjustment applies “[i]f the

                                                7
defendant knew or should have known that a victim of the offense

was    a       vulnerable       victim.”         Before       making       the    adjustment,        the

court          must     first       determine          that     a    victim       was       “unusually

vulnerable due to age, physical or mental condition, or . . .

otherwise         particularly            susceptible          to    the       criminal     conduct.”

USSG       §    3A1.1    cmt.       n.    2. 2   See       Llamas,       599   F.3d    at    388.    The

sentencing court must also find the defendant knew or should

have known of the victim’s unusual vulnerability. Id. In other

words,         applying       the    vulnerable            victim    adjustment         “requires      a

fact-based            explanation          of    why        advanced       age    or    some    other

characteristic made one or more victims unusually vulnerable to

the offense conduct, and why the defendant knew or should have

known of this unusual vulnerability.” Id. (citing United States

v. Vega-Iturrino, 565 F.3d 430, 434 (8th Cir. 2009) (internal

quotation marks omitted)).

       The vulnerable victim adjustment does not apply, however,

if    the       factor       that    makes       the       person    a    vulnerable        victim    is

incorporated            in    the        offense       guideline.         For    example,      if    an

offense guideline provides an enhancement for the age of the

victim, the vulnerable victim enhancement could not be applied

       2
        The adjustment currently does not require that the
defendant have targeted the victim specifically because of his
vulnerability. Before the 1995 amendment to § 3A1.1, Application
Note 2 stated that the adjustment “applies to offenses where an
unusually vulnerable victim is made a target of criminal
activity by the defendant.” See app. C, amend. 521.


                                                       8
because of the age of the victim. USSG § 3A1.1 cmt. n. 2; see

also United States v. Grubbs, 585 F.3d 793, 805 (4th Cir. 2009).

In   addition,    when     an      offense       has    multiple    victims,     the

government     need   only      prove     that    one    victim     was    unusually

vulnerable. Llamas,      599     F.3d     at    388.    Finally,    in    applying   §

3A1.1(b)(1), a sentencing court should consider “all relevant

conduct.” United States v. Bolden, 325 F.3d 471, 500 (4th Cir.

2003). Because the court’s determination is factual, we review

for clear error. Llamas, 599 F.3d at 388.

     Here, the record reflects that the district court found

circumstances    besides     the    age    of    the    victims    that   made   them

particularly vulnerable to Royal’s scheme. At Royal’s sentencing

hearing, the district court concluded:

     The Court has heard both sides, and the Court is in
     agreement with the government on these other issues in
     terms of the vulnerable victim and enhancement for
     that. Clearly, the evidence that I heard suggests that
     it’s not based on age so much. . . . What we have here
     essentially is a vulnerable victim or victims, and it
     was more than age. You had a couple, probably all
     three of the minors come, from dysfunctional families.
     . . . They were allowed to roam and hit the streets,
     and one was living essentially in a dumpster almost.
     And essentially he was able to take advantage of them
     because of their vulnerability, and that’s what the
     facts   were.  So,   I   think  the   enhancement  for
     vulnerability is correct.

J.A. 366-67.

     The record reflects that within hours of meeting each of

the victims, Royal knowingly exploited their dependence on drugs


                                          9
and alcohol by supplying each victim with alcohol, marijuana,

cocaine, PCP or ecstasy. Throughout Royal’s sexual exploitation

of the victims, he continued to provide drugs and alcohol. As

such,   Royal    took     advantage     of       each    victim’s    drug    dependence

vulnerability. See, e.g., United States v. Evans, 272 F.3d 1069,

1091    (8th    Cir.    2001)    (victim     vulnerable       to     sex    trafficking

because defendant knew she was drug-addicted and provided her

drugs); United States v. Amedeo, 370 F.3d 1305, 1317-18 (11th

Cir.    2004)    (teenage       victim’s         “drug    addiction    rendered      him

unusually       vulnerable”      to     defendant’s          supplying       him    with

cocaine).

       In addition, the record reflects that Melissa was homeless

when she met Royal and had no contact with her mother. See,

e.g., United States v. Irving, 554 F.3d 64, 75 (2d Cir. 2009)

(“children who were homeless and were without parental or other

appropriate       guidance        made           them     unusually         vulnerable,

independently of their ages”). As the government explained at

sentencing, Royal not only took advantage of all of the victims’

drug dependencies by “reduc[ing] their ability to say no and to

make    them     easier     to    coerce,”         Royal     “took     advantage      of

[Melissa’s]       situation,”         and    “placed        [Melissa]        with    co-

conspirators to enhance [his] control over her.” J.A. 360-61.

Accordingly, the district court did not err in applying the §



                                            10
3A1.1 two level enhancement for the vulnerability of Royal’s

victims.

                                              B.

      Next, Royal challenges the district court’s application of

the   use   of        a     computer      enhancement           pursuant     to     U.S.S.G.

2G1.3(b)(3) for conspiracy to commit sex trafficking and the

substantive      sex       trafficking       offense      involving    Ilana.       Such        an

adjustment is warranted if a “computer or interactive computer

service” is used to “(A) persuade, induce, entice, coerce, or

facilitate the            travel    of,   the    minor     to    engage    in     prohibited

sexual conduct; or (B) entice, encourage, offer, or solicit a

person to engage in prohibited sexual conduct with the minor.”

U.S.S.G.    §    2G1.3(b)(3).          The      enhancement       applies       even      if    a

defendant       did       not    personally        use    the     computer        since        the

enhancement “makes no mention of the defendant, but focuses on

the mechanism involved in the offense.” United States v. Dotson,

324 F.3d 256, 259 (4th Cir. 2003).

      Here, Melissa testified that while she was on her MySpace

page, Royal saw a picture of Ilana and told Melissa that “he

wanted her.” J.A. 267. After informing Royal that Ilana was only

fifteen years old, Royal indicated that he did not care and

prompted    Melissa         to     message    her.       J.A.   266-67.     Nevertheless,

Royal contends that even if a message were typed to Ilana, there



                                              11
is    no    testimony     as    to    what       that       message       was    or    whether     it

related to Royal.

       We    find     Royal’s        argument         unpersuasive.             The   enhancement

applies      even    if    a    message      soliciting            sexual       conduct    is    not

transmitted         via   computer;         it    is    sufficient          that      a   computer

“facilitate”         a    minor’s      “engage[ment]               in     prohibited           sexual

conduct.” U.S.S.G. § 2G1.3(b)(3). See also United States v. Lay,

583 F.3d 436, 447 (6th Cir. 2009) (“To allow a predator to use a

computer to develop relationships with minor victims, so long as

the    ultimate      consummation         is      first       proposed          through    offline

communication,            would       not        serve         the        purpose         of     the

enhancement.”). Accordingly, the district court did not err in

increasing Royal’s offense level by two levels for use of a

computer pursuant to § 2G1.3(b)(3).

                                                 C.

       Next, Royal challenges the district court’s application of

the obstruction of justice adjustment. He contends the evidence

is    insufficient         to     demonstrate               that     he    acted       willfully.

Guideline § 3C1.1 directs a sentencing court to add two offense

levels if “the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice

during the investigation or prosecution” of the offense. The

commentary to § 3C1.1 lists the “threatening, intimidating, or

otherwise      unlawfully         influencing           a    co-defendant,            witness,    or

                                                 12
juror, directly or indirectly, or attempting to do so” as an

example of conduct to which the enhancement applied. U.S.S.G. §

3C1.1, cmt. 4(a). We will uphold the enhancement so long as the

sentencing court’s findings include the “factual predicate for a

finding” that a defendant acted willfully. See United States v.

Castner,       50    F.3d    1267,     1279    (4th    Cir.     1995).      Finally,      the

government satisfies its burden if it can establish a defendant

willfully obstructed justice by a preponderance of the evidence.

United States v. Kuilin, 360 F.3d 456, 460 (4th Cir. 2004).

       Here,        in    applying    the     enhancement,         the    district    court

reasoned:

       [T]he evidence that I heard and which everyone here
       agrees that Mr. Royal did say in lockup is, “Do the
       right thing and don’t snitch.” And looking at all of
       the evidence associated in this case and the fact that
       the person who testified, . . . , indicated that she
       was afraid and nervous, and I heard that clearly, that
       is a bases [sic] to obstruct the processes of the
       court   and  to   influence   testimony,  and  clearly
       obstruction of justice is applicable.

J.A.    367.        The    district    court’s       findings       are    sufficient     to

sustain the adjustment. Even if we were to hold that Royal’s

“don’t   snitch”          comment     was   insufficient,       Royal       also    prompted

Melissa to “lie about her age” to law enforcement and to tell

the police that he had “no idea as to her actual age” and to

place    the    blame       on   a    co-conspirator.        J.A.        210-211.    Melissa

followed    Royal’s         instructions       and    did,    in    fact,     lie    to   law

enforcement          when    initially      questioned.       This        instruction      to

                                              13
Melissa provides an additional reason to affirm the adjustment.

See United States v. Garnett, 243 F.3d 824, 830 (4th Cir. 2001)

(court can affirm a sentence on the basis of any conduct in the

record that supports an increase in the offense level); United

States v. Ashers, 968 F.2d 411, 414 (4th Cir. 1992) (if one

basis     for     application         of     an        enhancement      is     erroneous,

enhancement       may     be   affirmed       based       on    correctly      determined

alternative basis). Accordingly, the district court did not err

in     increasing        Royal’s     offense       level        by   two      levels    for

obstruction of justice pursuant to U.S.S.G. § 3C1.1.

                                            D.

       Next, Royal challenges the district court’s application of

the leader or organizer role adjustment pursuant to U.S.S.G. §

3B1.1(a), which directs a sentencing court to add four offense

levels    “[i]f    the     defendant       was    an    organizer    or      leader    of   a

criminal    activity       that      involved      five    or    more     participants.”

Guideline       §3B1.1    does     not     apply    to    a    defendant      who     merely

organizes or supervises a criminal activity executed without the

aid of others, but must involve an exercise of some degree of

control over others for the commission of the offense. In making

this    determination,         the    commentary         instructs      the    sentencing

court to consider the exercise of decision-making authority; the

nature of the participation in the commission of the offense;

the recruitment of accomplices; the claimed right to a larger

                                            14
share of the fruits of the crime; the degree of participation in

planning    the    offense;    the    nature      and    scope      of    the    illegal

activity;    and    the   degree     of    control      exercised         over   others.

U.S.S.G. § 3B1.1 (commentary).

     Here, the record reflects that there were at least seven

people involved in the drug conspiracy: Royal, Crystal Brown,

Brown’s cousin Chris, Bentolila, Tibbs, Thomas King, and Paul

Green. In addition, the record clearly supports the district

court’s conclusion that Royal not only exercised control over

all of the participants, but he organized the conspiracy. While

Royal argues that “there was no other evidence . . that the drug

conspiracy would be considered . . . extensive” and that the

district court remarked that Royal “was not the biggest drug

dealer   that     I’ve    seen,”    these      facts    are       irrelevant     to   the

conclusion   that    Royal    was    the    leader      of    a    drug   distribution

conspiracy involving five or more people. As such, the district

court did not err in enhancing Royal’s offense level pursuant to

U.S.S.G. § 3B1.1(a).

                                          E.

     Finally, Royal alleges that the district court violated his

Fifth and Sixth Amendment rights in applying enhancements based

on conduct he was not charged with, did not admit to, and was

not supported by proof beyond a reasonable doubt as determined

by a jury. This argument is without merit.

                                          15
     In United States v. Grubbs, 585 F.3d 793 (4th Cir. 2009),

cert. denied, 130 S. Ct. 1923 (2010), we recently rejected the

same claim. “[A] sentencing court may consider uncharged and

acquitted conduct in determining a sentence, as long as that

conduct is proven by a preponderance of the evidence.” Id. at

799 (quoting United States v. Watters, 519 U.S. 148, 157 (1997);

United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994). The

panel    concluded   that    Booker    “did    not   change    the    sentencing

court’s ability to consider” such conduct. Id. (citing United

States v. Benkahla, 530 F. 3d 400 (4th Cir. 2008) (“Sentencing

judges may find facts relevant to determining a Guidelines range

by a preponderance of the evidence, so long as that Guidelines

sentence is treated as advisory and falls within the statutory

maximum    authorized   by    the     jury’s    verdict.”).      As   such,    we

concluded that no Sixth Amendment impediment existed because the

“judge    could   disregard    the    Guidelines      and     apply   the     same

sentence . . . in the absence of the special facts.” Id. at 799.

The “point is thus that the Guidelines must be advisory, not

that judges may find no facts.” Id. Fatal to Royal’s challenge,

we also concluded that “the due process clause of the Fifth

Amendment does not require the district court to find uncharged

conduct by a heightened standard of proof before using it as a

basis for determining a defendant’s sentence.” Id. at 802.



                                       16
                         III.

For the foregoing reasons, Royal’s sentence is

                                                 AFFIRMED.




                          17
