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No. 12-4668
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:12-cr-00021-HEH-1)
Submitted:
Decided:
Robert L.
Florida,
Attorney,
Richmond,
PER CURIAM:
Calvin Winbush pled guilty to conspiracy to transport
a
minor
across
2423(e)
state
(West
transportation
Supp.
of
lines
for
2012)
minor
prostitution,
(Count
for
One),
18
and
prostitution,
U.S.C.A.
interstate
18
U.S.C.A.
received
an
imprisonment.
above-Guidelines
sentence
of
168
months
U.S.
Sentencing
Guidelines
Manual
2G1.3(b)(3)(B)
We affirm.
In
Cleveland,
Ohio,
one
of
Winbushs
prostitutes,
an after-hours club.
them
on
backpage.com,
an
internet
site
where
Winbushs
minor,
traveled
and
another
Virginia,
for
Armstrong
posted
the
prostitute
purpose
additional
of
later
engaging
pictures
of
in
the
to
Richmond,
prostitution.
minor
on
the
internet site and the minor had sexual encounters with three
customers in Richmond.
2
Winbushs
objection,
two-level
increase
for
use
of
held
that
the
enhancement
applied
in
Winbushs
The
case
because
Armstrong,
computer
to
customers
working
advertise
for
her.
the
The
in
concert
minor
court
on
with
the
held
Winbush,
internet
that
such
and
used
solicit
conduct
fell
criminal
range
was
sentence,
which
history
121-151
the
II
months.
district
included
aggravated
category
court
assault,
menacing.
and
his
Before
reviewed
drug
However,
and
the
He was
advisory
Guidelines
determining
Winbushs
his
criminal
firearm
court
history,
offenses,
noted
Winbush
and
had
life
at
the
time
of
recruitment
made
her
extremely
her
and
placing
her
into
the
mainstream
of
prostitution
The
demonstrates
a
continuing
pattern
of
criminal
violations
not
adequately
represented
by
the
defendants
present
criminal history, his demonstrated lack of
respect of the law, and to deter future
exploitation of minors for the purpose of
prostitution.
On appeal, Winbush first challenges the computer-use
enhancement.
relies
on
As
he
did
Application
before
Note
the
for
district
the
court,
proposition
Winbush
that
the
Winbush also
responded
to
the
ads
Armstrong
posted
used
telephone
In support of his
443
(7th
inapplicable
Cir.
where
2009),
internet
which
ads
found
for
the
the
enhancement
defendants
minor
case
conclude
because
that
both
Patterson
Winbush
is
and
distinguishable
Armstrong
from
exercised
district court that the facts of this case fall squarely within
the plain language of the Guideline.
Under 2G1.3(b)(3)(B),
the
situation
posited
in
2G1.3(b)(3)(A),
where
the
decisions
scenario
in
applicable.
(3rd
Cir.
that
subsection
address
the
(b)(3)(B)
quite
have
different
found
the
pimp
enhancement
personally
communicated
by
computer
conclude that the district court did not err in applying the
enhancement.
Next, Winbush argues that the district court failed to
explain adequately its reasons for imposing a sentence above the
Guidelines range.
and
substantive
standard.
same
under
an
abuse
of
discretion
standard
applies
whether
the
sentence
is
inside,
v.
Rivera-Santana,
668
F.3d
95,
100-01
(4th
The
just
United
Cir.)
Guidelines
range,
and
need
only
set
forth
enough
to
v.
Diosdado-Star,
630
F.3d
359,
364,
366
United
(4th
Cir.)
(citing Gall, 552 U.S. at 56), cert. denied, 131 S. Ct. 2946
(2011); see also United States v. Carter, 564 F.3d 325, 328 (4th
Cir.
2009)
(sentencing
court
must
make
an
individualized
We conclude
that the district court adequately explained its reasons for the
upward variance by providing an individualized assessment based
on
the
facts
of
Winbushs
offense
and
his
criminal
record.
dispense
with
oral
argument
because
the
facts
and
legal