            Case: 14-13383    Date Filed: 04/17/2015   Page: 1 of 9


                                                                      [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-13383
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 1:12-cr-00285-WSD-AJB-1



UNITED STATES OF AMERICA,

                                                             Plaintiff - Appellee,

                                    versus

JOSHUA THOMAS HILL,

                                                          Defendant - Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                               (April 17, 2015)

Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

     Joshua Thomas Hill (“Hill”) appeals his 192-month sentence, imposed after
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he pled guilty to conspiracy to engage in sex trafficking of minors in violation of

18 U.S.C. § 1594(c). On appeal, Hill claims the district court erred by applying:

(1) a two-level enhancement for using a computer to solicit a person to engage in

unlawful sexual activity with a minor pursuant to U.S.S.G. § 2G1.3(b)(3)(B); and

(2) another two-level enhancement for his supervisory role in the offense pursuant

to U.S.S.G. § 3B1.1(c). Upon review of the record and the parties’ briefs, we

affirm.

                                        I.

      On February 19, 2012, Hill and his accomplices, Fabian Terran Murray

(“Murray”) and Clinton Saintvil (“Saintvil”), picked up two 14-year-old girls from

a park with the intent of using them as prostitutes. The group traveled to a local

hotel where Hill rented a room in his name and had sex with the girls. Hill paid

Saintvil for picking up the girls and later asked Saintvil for his wife, Nicole

Saintvil (“Mrs. Saintvil”), to post classified ads of the two on the internet. To that

end, Hill took nude photographs of the girls on his phone and sent the pictures to

Mrs. Saintvil; however, she informed Hill that the nude photographs could not be

used online. Hill then photographed the girls in undergarments and sent the

pictures to Mrs. Saintvil, who then used them to place online ads.

      Hill offered the girls to clients for sexual acts, setting the prices charged and

taking the illicit proceeds. Hill used this money to pay Saintvil for driving the


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women to meet a client and to reimburse Mrs. Saintvil for posting the online

advertisements.

       During the same time period, Hill also enlisted Saintvil’s assistance to take a

third young woman to various locations where she engaged in prostitution. As

with the other two minors, Hill used internet ads to obtain clients for her.

       Hill was indicted in federal court along with Murray and Saintvil for

conspiracy to commit child sex trafficking and substantive counts of child sex

trafficking in violation of 18 U.S.C. §§ 1594(c) and 1591(a)(1). 1 After Hill pled

guilty to the conspiracy charge, the United States Probation Office recommended,

among other enhancements, a two-level upward adjustment for Hill’s leadership

role in the offense under § 3B1.1(c). At sentencing, the Government urged the

district court to apply an additional two-level enhancement for Hill’s use of a

computer to solicit individuals to engage in prohibited sexual conduct with minors

under § 2G1.3(b)(3)(B). After considering the parties’ arguments and the factors

listed in 18 U.S.C. § 3553(a), the court imposed a 192-month sentence, applying

both enhancements over Hill’s objections. Hill filed a timely notice of appeal.

                                             II.

       As noted above, Hill first challenges the district court’s application of the

computer-use enhancement in calculating his sentence. If a district court

1
       Although irrelevant to our analysis, we note that the indictment also charged Hill,
individually, as a convicted felon in possession of a firearm.
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improperly calculates the appropriate sentencing guidelines range, the court

commits procedural error. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586,

597, 169 L.Ed.2d 445 (2007). This Court reviews the district court’s interpretation

and application of the guidelines to factual findings de novo. United States v.

Dougherty, 754 F.3d 1353, 1358 (11th Cir. 2014). The party challenging the

sentence has the burden of showing the sentence to be procedurally unreasonable.

See United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010).

          In pertinent part, the sentencing guidelines provide for a two-level

enhancement if the defendant used a computer 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). In turn, application note 4

states:

          Subsection (b)(3) is intended to apply only to the use of a computer or
          an interactive computer service to communicate directly with a minor
          or with a person who exercises custody, care, or supervisory control
          of the minor. Accordingly, the enhancement in subsection (b)(3)
          would not apply to the use of a computer or an interactive computer
          service to obtain airline tickets for the minor from an airline’s Internet
          site.

U.S.S.G. § 2G1.3, cmt. n. 4. The application note is authoritative unless we

determine that it “is inconsistent with, or a plainly erroneous reading of, that

guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123


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L.Ed.2d 598 (1993).

       Hill contends that the application note is consistent with the guideline, and

therefore, the district court erred in applying the enhancement because he did not

use a computer to communicate with the minors or a person who exercises control

over the minors. We have not issued an opinion that squarely addresses whether

this application note authoritatively informs § 2G1.3(b)(3)(B) or is a plainly

erroneous reading of that guideline. 2 Following the Fifth Circuit, a number of our

sister circuits have concluded that the application note is patently inconsistent with

the guideline in light of the guideline’s express terms and drafting history. United

States v. Cramer, 777 F.3d 597, 604 (2d Cir. 2015); United States v. McMillian,

777 F.3d 444, 450 (7th Cir. 2015)3; United States v. Pringler, 765 F.3d 445, 454-56

(5th Cir. 2014), cert. denied, 135 S.Ct. 1000 (2015). The Ninth Circuit, in contrast,

declined to take a stance on the matter, leaving its district courts to determine the

appropriate application of the guideline. United States v. Jackson, 697 F.3d 1141,

1146 (9th Cir. 2012).


2
        In United States v. Madkins, 390 F. App’x 849 (11th Cir. 2010), we acknowledged in
dicta that “a persuasive case has been made that the commentary is at odds with the plain
language of this enhancement[;]” however, we ultimately decided the case on narrower grounds.
Id. at 852.
3
        The Seventh Circuit previously reversed a district court’s application of the enhancement
because the Government conceded that it was inapplicable. United States v. Patterson, 576 F.3d
431, 443 (7th Cir. 2009). Our sister circuit recently issued an opinion rejecting the
Government’s erroneous concession and adopting the Fifth Circuit’s analysis. McMillian, 765
F.3d at 450.
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       Today, we adopt the Fifth Circuit’s well-reasoned analysis. See Pringler,

765 F.3d at 451-56. As in Pringler, Hill used a computer to advertise the sexual

services of minors. Hill used his cellphone (itself a kind of computer) 4 to send

photographs of the minor girls for Mrs. Saintvil to use in online ads offering minor

girls for sex. This conduct clearly fits within the plain language of U.S.S.G. §

2G1.3(b)(3)(B)—i.e., use of a computer to “solicit a person to engage in prohibited

sexual conduct with a minor.” Id. at 454. Further, it appears the application note

was a drafting error. As the Fifth Circuit explained:

              In addition, the drafting history of the Guideline shows that
       applying application note 4 to Subsection 3(B) is the result of a
       drafting error. The note was only intended to apply to “the situation
       posited in [Subsection 3(A)].” Winbush, 524 Fed.Appx. at 916.
       Before November 1, 2004, a single guideline section covered the
       promotion of a commercial sex act with another, regardless of the
       victim’s age: U.S.S.G. § 2G1.1. It contained both a provision and
       application note with nearly identical language to that at issue here.
       As subsection (b)(5)(A) then stated:

            If a computer or an Internet-access device was used to (A)
            persuade, induce, entice, coerce, or facilitate the travel of, a minor
            to engage in prostitution; or (B) entice, encourage, offer, or solicit
            a person to engage in prohibited sexual conduct with a minor,
            increase by 2.

       Application note 8 stated:



4
        Hill does not argue that the cellphone with which Hill sent photographs to Mrs. Saintvil is
not a computer. Any such argument is thus abandoned. See also United States v. Kramer, 631
F.3d 900, 902-03 (8th Cir. 2011) (defining a cell phone as a computer for purposes of the
guidelines pursuant to 18 U.S.C. § 1030(e)(1)); U.S.S.G. § 2G1.3, cmt. n.1 (defining “computer”
as having the meaning provided in 18 U.S.C. § 1030(e)(1)).
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          Subsection (b)(5)(A) is intended to apply only to the use of a
          computer or an Internet-access device to communicate directly
          with a minor or with a person who exercises custody, care, or
          supervisory control of the minor. Accordingly, the enhancement
          in subsection (b)(5)(A) would not apply to the use of a computer
          or Internet-access device to obtain airline tickets for the minor
          from an airline’s Internet site.

      (emphasis added). Crucially, the nearly identical application note
      specifies that it applies, or is logical, only to Subsection 3(A) of the
      enhancement, not to the entire enhancement.

             Then, the Commission revised § 2G1.1 effective November 1,
      2004, to cover only those offenses that do not involve minors by
      striking the entire language of § 2G1.1 and replacing it with language
      that addressed only adults. U.S.S.G. Appx. C, Vol. III, Amendment
      664, page 25-31. In the same amendment, the Commission explained
      that offenses involving a minor victim were now to be sentenced
      under § 2G1.3. Id. at page 33. The Commission thereby amended the
      Guidelines by moving the previous language and commentary of §
      2G1.1 involving minors to a new section § 2G1.3 at the end of subpart
      1. Id. at 34. Thus came into being the new troublesome language of
      application note 4. The new application note mirrors the language of
      the old § 2G1.1 application note, with a big difference. That note
      which applied explicitly only to subpart (A) of § 2G1.1(b)(5) now
      applied to both provisions of (b)(3). This change was a mere drafting
      error.

Id. at 454-55 (footnote omitted).

      Because the application note is inconsistent with the plain language of

U.S.S.G. § 2G1.3(b)(3)(B), the plain language of the guideline controls. Stinson,

508 U.S. at 38, 113 S.Ct. at 1915. Here, Hill’s actions fall squarely within the

language of the enhancement; he used his cellphone to place online ads offering

young girls for prohibited purposes. Thus, the district court did not err in


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increasing his offense level.

                                          III.

      Hill also asserts that the district court erred by enhancing his base offense

level for his role as an organizer, leader, manager, or supervisor under U.S.S.G. §

3B1.1(c). A district court may commit procedural error by selecting a sentence

based on clearly erroneous facts. Gall, 552 U.S. at 51, 128 S.Ct. at 597. The

district court’s determination of the defendant’s role in the criminal offense is a

finding of fact we review for clear error. United States v. Rodriguez De Varon,

175 F.3d 930, 937 (11th Cir. 1999) (en banc). A factual finding is clearly

erroneous when, although there is evidence to support it, we are left with the

definite and firm conviction, after review of the entire evidence, that a mistake has

been made. United States v. Barrington, 648 F.3d 1178, 1195 (11th Cir. 2011).

      The role enhancement under § 3B1.1(c) provides for a two-level increase

where “the defendant was an organizer, leader, manager, or supervisor” in a

criminal activity involving fewer than five people. U.S.S.G. § 3B1.1(c).

Application note 4 lists a number of factors for the district court to consider in

determining the defendant’s role in the offense, including the following:

      [T]he exercise of decision making authority, the nature of
      participation in the commission of the offense, the recruitment of
      accomplices, the claimed right to a larger share of the fruits of the
      crime, the degree of participation in planning or organizing the
      offense, the nature and scope of the illegal activity, and the degree of
      control and authority exercised over others.
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Id. § 3B1.1(c), cmt. n.4. An individual has a supervisory or managerial role where,

for example, he recruits others to make his criminal scheme more effective, sets the

prices to be paid for the illegal services, and pays his co-conspirators while

keeping a larger portion of the profits for himself. United States v. Njau, 386 F.3d

1039, 1041 (11th Cir. 2004).

      The district court’s finding that Hill exercised a supervisory role in the

criminal scheme was not clearly erroneous. See Njau, 386 F.3d at 1041. Hill

actively recruited Saintvil and his wife to aid him in his criminal scheme, paying

them for the services they rendered. Hill arranged transportation for the young

girls to meet clients, set the prices they were to charge, and kept the majority of the

illegal gains for himself. He also took the lewd photographs Mrs. Saintvil posted

online at Hill’s direction. Based on these facts, the district court appropriately

added two levels pursuant to § 3B1.1(c).

      AFFIRMED.




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