US v. Calvin Winbush, No. 12-4668 (4th Cir. 2013)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4668 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CALVIN WINBUSH, a/k/a Good Game, Defendant - Appellant. 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: March 21, 2013 Decided: May 24, 2013 Before KEENAN, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Robert L. Florida, Attorney, Richmond, Sirianni, Jr., BROWNSTONE LAW FIRM, PA, Winter Park, for Appellant. Neil H. MacBride, United States Jamie L. Mickelson, Assistant United States Attorney, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Calvin Winbush pled guilty to conspiracy to transport a minor across state (West Supp. § 2423(e) transportation of a lines for 2012) minor prostitution, (Count for One), 18 and prostitution, U.S.C.A. interstate 18 U.S.C.A. § 2423(a) (West Supp. 2012), 18 U.S.C. § 2 (2006) (Count Two). He received an imprisonment. above-Guidelines sentence of 168 months Winbush appeals his sentence, contending that the district court (1) erred in applying an enhancement for use of a computer, U.S. Sentencing Guidelines Manual § 2G1.3(b)(3)(B) (2011), and (2) failed to explain adequately its reasons for varying upward from criminal history category II to category III. We affirm. In Cleveland, Ohio, one of Winbush s prostitutes, Sonora Armstrong, recruited a fifteen-year-old girl to work for Winbush. The girl had been living on the streets and dancing at an after-hours club. them on Armstrong took pictures of her and posted backpage.com, an internet site where Winbush s prostitutes advertised their services. Winbush, Armstrong, the 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 At the sentencing hearing, the district court applied, over Winbush s objection, a two-level increase for use of a computer to entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with a minor under USSG § 2G1.3 (b)(3)(B). Winbush argued that the commentary to § 2G1.3 did not provide clear guidance on how the enhancement should be applied and that the plain language of the Guidelines did not apply in his case. Section 2G1.3(b)(3) states: If the offense involved the use of a computer or an interactive computer service to (A) persuade, induce, entice, coerce, or facilitate the travel of, [sic] 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, increase by 2 levels. Application Note 4 to § 2G1.3 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. The district court first decided that Application Note 4 was inconsistent with the language of § 2G1.3(b)(3)(B). court held that the enhancement 3 applied in Winbush s 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 a solicit conduct fell squarely within the ambit of § 2G1.3(b)(3)(B). Winbush s total offense level was thirty-one. in criminal range was sentence, which history 121-151 the II months. district included aggravated category court assault, menacing. and his reviewed However, and the advisory Guidelines determining Before drug He was Winbush s his criminal firearm court history, offenses, noted Winbush and had received very lenient sentences for most of his convictions. With respect to the minor, the court observed that her station in life at the time of recruitment made her extremely vulnerable, and it was compounded by the defendant s recruitment of her and placing her into the mainstream of prostitution within his operation. The court explained its decision to sentence Winbush above the Guidelines range as a variance in light of the 18 U.S.C. § 3553(a) (2006) factors, despite structuring it as an increase from criminal history category II to category III. court stated that [A]n upward variance to Total Offense Level 31, Criminal History Category III is appropriate to reflect the nature and circumstances of the offense, the defendant s past criminal history which 4 The demonstrates a continuing pattern of criminal violations not adequately represented by the defendant s 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 4 the for district the court, proposition Winbush that the enhancement applies only when a computer is used to communicate directly with the minor or the minor s custodian. Winbush also argues that the enhancement is inapplicable because customers who responded to the ads Armstrong posted rather than a computer to contact the minor. used a telephone In support of his argument, Winbush relies on United States v. Patterson, 576 F.3d 431, 443 (7th inapplicable Cir. where 2009), internet which ads found for the the enhancement defendant s minor prostitute were posted by another minor who was working for a different pimp. We this case conclude because that both Patterson Winbush is and distinguishable Armstrong from exercised supervisory control over the minor and Armstrong advertised her services on the internet. More importantly, we agree with the district court that the facts of this case fall squarely within the plain language of the Guideline. Under § 2G1.3(b)(3)(B), the focus is on the use of a computer by the defendant or his 5 agent to entice persons to engage in prohibited sexual conduct with the minor. only the Application Note 4, however, appears to address situation posited in § 2G1.3(b)(3)(A), where the defendant uses a computer to contact the minor or her custodian in order to entice the minor into prohibited sexual conduct. Several decisions scenario in applicable. (3rd Cir. that subsection address the (b)(3)(B) quite have different found the pimp enhancement United States v. Burnett, 377 F. App x 248, 252 2010)(defendant personally communicated by computer with individuals he enticed to have sex with the minor); United States v. Vance, 494 F.3d 985, 997 (11th Cir. 2007) (defendant used computer to direct undercover agent to provide underage girls). We agree with the reasoning of these decisions, and 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 This court reviews a sentence for procedural reasonableness under an abuse of discretion Gall v. United States, 552 U.S. 38, 51 (2007). standard applies whether the sentence is inside, outside, or significantly outside the Guidelines range. States v. Rivera-Santana, 668 F.3d 95, 100-01 (4th The just United Cir.) (internal citation and quotation marks omitted), cert. denied, 6 133 S. Ct. 274 (2012). In reviewing any variance, the appellate court must give due deference to the sentencing court s decision because it has flexibility in fashioning a sentence outside of the Guidelines range, and need only set forth enough to satisfy the appellate court that it has considered the parties arguments and has a reasoned basis for its decision. States 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 assessment based on the facts presented ) (citation and emphasis omitted). Here, the court reviewed Winbush s criminal history, the nature and circumstances of the offense, and the need to prevent Winbush from further exploiting minors. We conclude that the district court adequately explained its reasons for the upward variance by providing an individualized assessment based on the facts of Winbush s offense and his criminal record. Therefore, the district court did not abuse its discretion by imposing a sentence of 168 months. Accordingly, we affirm the district court s judgment. We dispense with oral argument 7 because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.