UNITED STATES

v.

JASON GATLIN

[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit No. 19-14969 UNITED STATES OF AMERICA, versus JASON GATLIN, Plaintiff-Appellee, Defendant-Appellant. Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cr-20163-RS-1

19-14969 3 sentence as to Count 3. We also affirm the district court's restitution order.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Gatlin's Relationship with and Trafficking of E.H.

E.H.¹ ran away from home when she was sixteen years old. She began using drugs, starting with marijuana and escalating to MDMA. According to E.H., she was unable to get a job, so she traded sex for money and drugs. In October 2018, J.C., E.H.'s friend at the time, introduced E.H. to Gatlin. Gatlin and E.H. first interacted by talking on the phone and eventually began a sexual relationship. When they first met in person, Gatlin picked up E.H. and took her to a hotel in Florida City, where he paid her about $40 and gave her some drugs in exchange for sex. When E.H. first met Gatlin, she told him that she was seventeen years old. Subsequently, the two stayed in contact, and E.H. believed that they were in a romantic relationship. E.H. began saying that she was eighteen years old, despite being seventeen years old, because she wanted to protect their relationship. Gatlin and E.H. took at least two trips to Key West, where they stayed together in a house that Gatlin was working on. Throughout this relationship, Gatlin took at least one photograph of them having sex.¹ The names of the minors in this case have been omitted to preserve their anonymity.

19-14969 5 she spoke with additional officers. Gatlin was arrested three days later. B. Gatlin’s Pretrial Tampering with E.H. Before trial, Gatlin made two attempts to tamper with E.H.’s testimony. First, in the period after E.H. spoke with law enforcement but prior to his arrest, Gatlin gave E.H. money and food and told her to recant her statements to the police. Second, after he was arrested, Gatlin told his mother to convince E.H. to recant. In a prison call, Gatlin told his mother that he would “get out immediately” if E.H. said she was lying and that it would take “[o]ne thousand dollars,” because “[p]eople will do all kinds of stuff for that.” Gatlin’s mother said that she understood and that she would “try and do the best [she] can to get [Gatlin] out of there.” At the time, E.H. did not have permanent housing and was living with Gatlin’s mother. In a later call, Gatlin told E.H. directly that all she had to do was go into court and change her statements in a sworn affidavit. Sometime later, Gatlin’s mother drove E.H. to the public defender’s office, where E.H. tried to recant her statements to Gatlin’s public defender, who eventually relayed her recantation to the Federal Bureau of Investigation (“FBI”). E.H. continued living with Gatlin’s mother following that encounter. At trial, E.H. said she tried to recant her statements because she “needed a place to stay.”

C. Indictment and Trial

A grand jury charged Gatlin via a superseding indictment with one count of sex trafficking of a minor, in violation of¹⁸

19-14969 7 At first, the jury found Gatlin guilty on all counts. However, on the interrogatory verdict form, the jury did not find either of the conditions necessary to trigger liability, i.e., use of force or reckless disregard of the fact that the victim was a minor. Because of this inconsistency, defense counsel asked the district court to “direct a verdict of not guilty . . . as to Count¹,” but defense counsel did not specify the grounds for doing so. The district court declined. Instead, reasoning that the jury had returned an inconsistent verdict and “the verdict [had not] been discharged,” the district court clarified the instructions for the jury and directed them to continue deliberating. After further deliberations, the jury found Gatlin guilty under the second condition, i.e., that Gatlin acted in reckless disregard of the fact that E.H. was a minor.

D. Sentencing

The case proceeded to sentencing. Prior to sentencing, a Presentence Investigation Report (“PSI”) was prepared for Gatlin’s case. For Count¹, sex trafficking of a minor, the PSI noted that the base offense level was 30. The PSI recommended a total increase of ten points, for an adjusted total level of 40, based on the following reasons: (1) E.H. had been in Gatlin’s custody, care, or supervisory control; (2) Gatlin had influenced E.H. to engage in prohibited sexual conduct; (3) the offense involved the use of a computer; (4) the offense involved the commission of a sex act; and (5) Gatlin

19-14969 9 Gatlin's likelihood to reoffend and the need to protect the public, and Gatlin's prior violations of probation. After a separate hearing, the district court also ordered Gatlin to pay $1,700 in restitution. Gatlin timely filed this appeal.³

II. STANDARDS OF REVIEW

"We review questions of constitutional law de novo.” United States v. Brown, 364 F. 3d 1266, 1268 (11th Cir. 2004). Similarly, whether a jury instruction properly states the law is a legal question that we review de novo. United States v. Stone, 9 F. 3d 934, 937 (11th Cir. 1993). “We review the sufficiency of evidence to support a conviction de novo, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences and credibility choices in favor of the jury's verdict.” United States v. Taylor, 480 F. 3d 1025, 1026 (11th Cir. 2007). “We review the district court's application of the Sentencing Guidelines de novo, and its findings of fact for clear error.” United States v. Trujillo, 146 F. 3d 838, 847 (11th Cir. 1998). And “[w]e review de novo the legality of an order of restitution, but we review factual findings underlying a restitution order for clear error.” United States v. Washington, 434 F. 3d 1265, 1267 (11th Cir. 2006). “For a finding to be clearly erroneous, [we] 3 We note that Gatlin first appealed the finding of guilt as well as the sentencing order. Gatlin then appealed in a separate notice of appeal the district court's restitution order. The government moved to consolidate the appeals, which we granted.

III. ANALYSIS

On appeal, Gatlin raises four arguments challenging his convictions and sentences. Specifically, Gatlin contends that: (1) there

19-14969 11 was insufficient evidence to sustain the jury’s guilty verdicts; (2) the district court violated his rights by directing the jury to continue deliberating after they reached an inconsistent verdict; (3) the district court improperly applied sentencing enhancements and imposed an unreasonable sentence; and (4) the order of restitution violated his constitutional rights. We address these arguments in turn.

A. Whether There Was Sufficient Evidence to Sustain the

Jury’s Guilty Verdicts. Gatlin argues that there was insufficient evidence to sustain each of his three convictions. 1. Sex Trafficking of a Minor (Count¹) We begin our analysis with Gatlin’s conviction for sex trafficking of a minor. A person is guilty of sex trafficking of a minor under¹⁸ U.S.C. § 1591(a)(1) when he (1) “recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person,” (2) “knowing, or . . . in reckless disregard of the fact, . . . that the person has not attained the age of¹⁸ years,” and (3) “knowing, or . . . in reckless disregard of the fact,” that the person “will be caused to engage in a commercial sex act.” As to the second element, where “the defendant had a reasonable opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained, maintained, patronized, or solicited, the [g]overnment need not prove that the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of¹⁸ years.” Id. § 1591(c).

19-14969 13 Gatlin took as E.H.’s pimp discussed above, E.H. testified that Gatlin expected a cut of the money she made from her prostitution. The evidence presented at trial also showed that Gatlin knew E.H. was having sex for money and that he expected to reap some of the benefit by taking a cut of the money. Gatlin argues, however, that “cause,” as used in § 1591(a), means “something that produces an effect, result, or consequence” and that the “logical reading” of the statute’s language of “knowing . . . the person . . . will be caused to engage in a commercial sex act” describes acts that the defendant intends to take, i.e., the defendant “means to ‘cause’ the minor to engage in commercial sex acts.” According to Gatlin, § 1591 “does not criminalize commercial sex acts with a minor in general, but makes criminal only those instances where a minor will be caused to engage in commercial sex acts through the defendant’s specific actions.” And Gatlin argues that any of the acts of “assistance” he purportedly provided do not satisfy § 1591. We conclude that Gatlin’s argument as to this point is without merit. Section 1591(a) criminalizes certain actions by a defendant—recruiting, enticing, harboring, transporting, providing, obtaining, advertising, maintaining, patronizing, or soliciting by any means a person—if the defendant knows that the minor “will be caused to engage in a commercial sex act.” § 1591(a)(1) (Emphasis added). As an initial matter, we have held that criminal liability under § 1591 is not conditioned on the actual occurrence of any commercial sex act. See United States v. Blake, 868 F. 3d 960, 977 (11th Cir.

19-14969 15 2. Production of Child Pornography (Count²) We now turn to Gatlin's conviction for production of child pornography under¹⁸ U.S.C. § 2251. As relevant here, a person is guilty of violating § 2251 if he "employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct." § 2251(a). Only the intent element—“for the purpose of producing any visual depiction of such conduct"—is at issue here. Gatlin contends that § 2251 requires a specific intent to produce child pornography and that child pornography produced incidentally to a sexual encounter is insufficient. Gatlin also argues that “[t]he undisputed evidence showed that [he] engaged in sexual activity with E.H. and took a photo, not that he engaged in sexual activity with E.H. to take a photo.” (Emphasis in original). Based on the evidence presented at trial, we conclude that the intent element was met here. Specific intent does not require that the defendant be "single-minded in his purpose. [A person] 'is no less a child pornographer simply because he is also a pedophile.'" See United States v. Lebowitz, 676 F. 3d 1000, 1013 (11th Cir. 2012) (quoting parenthetically United States v. Sirois, 87 F. 3d 34, 39 (2d Cir. 1996)). Accordingly, "[t]he government was not required to prove that making explicit photographs was [Gatlin's] sole or primary purpose” for engaging in sexual activity with E.H.; instead, "it was enough to show that it was 'a purpose' for doing so." Cf.

19-14969 17 (quoting parenthetically United States v. Ortiz-Graulau, 526 F. 3d 16, 19 (1st Cir. 2008))). And we have previously rejected the incidentalpornographer argument that Gatlin raises here. See id. (“Whether some other sexual encounter would have occurred even without recording equipment is irrelevant. A reasonable jury could conclude [the defendant] violated¹⁸ U.S.C. § 2251(a)."). We thus conclude that there was sufficient evidence to sustain Gatlin's conviction for production of child pornography and affirm Gatlin's conviction as to Count 2. 3. Witness Tampering (Count³) We next address Gatlin's conviction for witness tampering. As relevant to Gatlin's case, a person violates¹⁸ U.S.C. § 1512(b) if he "[(1)] knowingly uses intimidation, threatens, or corruptly persuades another person, . . . or engages in misleading conduct toward another person, with intent to . . . [(2)] hinder, delay, or prevent the communication of information relating to the commission or possible commission of a Federal offense” “[(3)] to a law enforcement officer or judge of the United States.” Where a defendant acts to prevent a “person from communicating with law enforcement officers in general," the intent element is satisfied where there is “a reasonable likelihood that a relevant communication would have been made to a federal officer.” Fowler v. United States, 563 U.S. 668, 670 (2011) (emphasis in original) (interpreting¹⁸ U.S.C. § 1512(a)(1), a nearly identical provision); see also United States v. Chafin, 808 F. 3d 1263, 1274–75 (11th Cir. 2015) (finding plain error where a district court failed to apply the Fowler reasonable-

19-14969 19 States v. Smith, 723 F. 3d 510, 518 (4th Cir. 2013); then quoting Fowler, 563 U.S. at 678). By contrast, the Fourth Circuit held that the federal nexus element of § 1512 “may be inferred by the jury from the fact that the offense was federal in nature, plus additional appropriate evidence." Ramos-Cruz, 667 F. 3d at 497. In Ramos-Cruz, the court did not focus solely on the fact that the murder at issue was eventually prosecuted as a federal crime but also considered uncontested evidence, including (1) a state task force was formed shortly after the murder, which investigated the gang the defendant was a member of, (2) a detective's communication with federal authorities regarding the murder, and (3) informants testifying they had spoken with federal law enforcement officers. See id. And, in United States v. Veliz, 800 F. 3d 63 (2d Cir. 2015), the Second Circuit adopted the Fourth Circuit's approach and found that sufficient evidence supported the jury's finding that the defendant had violated the witness tampering statute. Id. at 74–75. Here, Gatlin asserts that he lacked the requisite intent to violate § 1512(b) because the evidence established that he asked E.H. to lie only to Gatlin's public defender, not a federal officer. In addressing this issue, we need not decide whether adopt the "additional appropriate evidence" approach of the Second and Fourth Circuits, see Ramos-Cruz, 667 F. 3d at 497; Veliz, 800 F. 3d at 74–75, because we conclude that the evidence presented by the government in this case established only a “remote, outlandish, or simply hypothetical" possibility that E.H.'s recantation statements would

19-14969 21 a law enforcement officer under Florida law. At the time E.H. gave those statements, federal charges had not been filed against Gatlin. Furthermore, the record shows that when Gatlin was arrested, he "thought [he] was only going to be charged with battery," which is a state offense. We find that this case bears marked similarities to our decision in Chafin. In Chafin, we concluded that the defendant had demonstrated plain error as to his witness tampering conviction because the government had not introduced evidence showing that the defendant's statements to a state law enforcement agent investigating an alleged misuse of a jail commissary account were reasonably likely to be communicated to federal authorities. See 808 F. 3d at 1274. Rather, it was "just the opposite”: the government proved only that the state agent told the defendant that the local district attorney had initiated the investigation. Id. Thus, we reasoned, had the district court applied Fowler's standard to the evidence, the defendant's trial on the witness tampering charge "would have ended in an acquittal instead of a conviction.” Id. Similarly here, the government did not present any evidence indicating that Gatlin knew federal officers were investigating him nor any knowledge regarding the federal nature of the offenses when he sought E.H. to recant her statement. Cf. United States v. Sutton,³⁰ F. 4th 981, 989–90 (10th Cir. 2022) (vacating a § 1512 conviction where the government did not present any evidence that the witness tampering conduct at issue “suggest[ing] the possibility of proceedings that were likely to be federal").

19-14969 23 Fowler that the statute can reach conduct that "takes place before the victim has engaged in any communication at all with law enforcement officers at a time when the precise communication and nature of the officer who may receive it are not yet known." See 563 U.S. at 673. But in establishing the reasonable likelihood standard, the Court explained that, “[o]ften, when a defendant acts in ways that violate state criminal law, some or all of those acts will violate federal criminal law as well.” Id. at 676. Therefore, “where a federal crime is at issue, communication with federal law enforcement officers is almost always a possibility." Id. (emphasis in original). Thus, the Court explained, to allow the government “to show only a mere possibility that a communication would have been with federal officials is to permit the [g]overnment to show little more than the possible commission of a federal offense.” Id. First, we note that sex trafficking of a minor is an offense under both federal and Florida law. See Fla. Stat. § 787.06(3) (stating that any person who knowingly engages, or attempts to engage in, human trafficking commits a felony of the first degree); Matos v. State, 359 So. 3d 794, 797 (Fla. Dist. Ct. App. 2023) (explaining that section 787.06(3) "include[s] prostitution of a child within the definition of human trafficking”). Thus, Gatlin's conduct here violated both state and federal criminal law, meaning that prosecution for his conduct was not exclusively federal. As the Court explained in Fowler, “where a federal crime is at issue, communication with federal law enforcement officers is almost always a possibility." 563 U.S. at 673. But the government must show more than a mere possibility, and the government's evidence showing the opening of a

19-14969 25 We therefore conclude that the government's evidence established nothing more than a “remote” or “simply hypothetical" possibility that E.H.'s recantation statements would have reached a federal officer. Accordingly, no rational trier of fact could have found the federal nexus element of the witness tampering crime, and we reverse Gatlin's conviction on this count.

B. The Court's Direction to the Jury to Continue Deliberat-

ing After Returning an Inconsistent Verdict Was Proper. We turn now to Gatlin's second argument: that the district court violated his rights by directing the jury to continue deliberating after they reached an inconsistent verdict. To review, the jury initially returned a verdict finding Gatlin guilty of sex trafficking a minor but, on the special interrogatory, failed to find either of the conditions that could support such a verdict. Rather than resolve this inconsistency on its own one way or the other, the district court clarified the instructions for the jury and directed them to continue deliberating. Defense counsel raised a general objection to this approach, stating that "[s]ince [the jury] found no as to both prongs of the statute, we'd ask that the Court direct a verdict of not guilty as to . . . Count 1.” On appeal, Gatlin argues that, by not entering a judgment of acquittal as to Count¹ and instead ordering the jury to continue its deliberations, the district court violated the Supreme Court's holding with regard to inconsistent verdicts in United States v. Powell, 469 U.S. 57 (1984), as well as his Fifth and Sixth Amendment

1. The District Court Did Not Run Afoul of Powell.

Gatlin argues that the district court ran afoul of the Supreme Court's precedent on inconsistent verdicts under Powell, 469 U.S. 57. In Powell, the Supreme Court held that where a verdict is inconsistent as between counts of an indictment, a guilty verdict on one of the inconsistent counts may nevertheless be properly entered. See id. at 69 (“[T]here is no reason to vacate respondent's conviction merely because the verdicts cannot rationally be reconciled."). Powell stands generally for the proposition that inconsistency between verdicts on different counts does not form an independent basis for review. See id. at 66 ("The fact that the inconsistency may be the result of lenity, coupled with the Government's inability to invoke review, suggests that inconsistent verdicts should not be reviewable.”). There are several rationales for this rule. A conflicting finding by the jury on two counts can equally reflect a “mistake, compromise, or lenity." Id. at 65. Moreover, where such a verdict reflects "jury lenity," our review would impinge on "the jury's historic function, in criminal trials, as a check against arbitrary or oppressive exercises of power by the Executive Branch.” Id. And a defendant is already protected against "jury irrationality or error by the independent review of the sufficiency of the evidence." United States v. Mitchell, 146 F. 3d 1338, 1344 (11th Cir. 1998) (quoting Powell, 469 U.S. at 67).

19-14969 27 But the inconsistent verdict referred to in Powell is distinct from the one at issue here. In Powell, the issue was whether a jury could "have acquitted [the defendant] of conspiracy to possess cocaine and possession of cocaine, and still found her guilty of using the telephone to facilitate those offenses.” Powell, 469 U.S. at 69. In other words, Powell referred to a verdict that was inconsistent between counts. Here, we have a verdict that is inconsistent as to just one count. The dilemma we face here is nearly identical to the one addressed by then-Judge Gorsuch sitting on the Tenth Circuit in United States v. Shippley, 690 F. 3d 1192 (10th Cir. 2012). In Shippley, the defendant was charged with conspiracy relating to a scheme to traffic "considerable amounts of high quality cocaine.” Id. at 1193. The jury was issued two documents to fill out: a general verdict form and a set of special interrogatories asking which drug kinds and quantities were involved. Id. At the conclusion of the trial, "the jury returned with a guilty verdict on the general verdict form, [but] it answered 'no' to each of the special interrogatories, indicating that Mr. Shippley conspired to distribute none of the drugs at issue in the case.” Id. The district court was “[p]erplexed,” “sought advice from counsel,” and then, after reinstructing the jury, asked them to "deliberate again." Id. “[F]urther deliberations quickly yielded an unambiguous guilty verdict." Id. The defendant appealed, asserting that the district court's direction to the jury to keep deliberating violated Powell. Id. at 1194.

19-14969 29 suggests the district court committed an error of constitutional magnitude (or otherwise) in proceeding as it did in this case. Id. at 1195 (emphasis in original). We are persuaded by then-Judge Gorsuch's reasoning in Shippley that directing the jury to continue deliberations under these circumstances was not error. Here, the district court had not accepted the jury's verdict and, as a result, the verdict was not final. See, e.g., Harrison v. Gillepsie, 640 F. 3d 888, 899 (9th Cir. 2011) (“The court may . . . reject the jury's verdict if it is inconsistent or ambiguous."). Gatlin asked the district court to enter a judgment of acquittal because the jury did not answer affirmatively either of the special interrogatories that would allow a guilty verdict. But doing so would have required the district court to overlook the jury's unanimous finding of guilt as to Count¹ on the general verdict form. And the inverse—simply accepting the general finding of guilt—was equally untenable. Here, as in Shippley, "it was metaphysically impossible” to give effect to the jury's verdict. Id. Because the district court did not accept the jury verdict, we hold that the district court did not err by giving clarifying instructions to the jury and then directing them to continue deliberating.⁶ 6 In reaching this holding, we note that we are not faced with a situation where the district court accepted an internally inconsistent verdict, e.g., a jury's verdict that generally found a defendant guilty of a charge but also specifically found that the government had not proved an element (or elements) of the offense beyond a reasonable doubt. As such, we neither need to decide this issue nor consider whether to follow cases from our sister circuits holding that

19-14969 31 not have the opportunity to consider the issue, and we are now considering it for the first time on appeal. "[W]here, as here, a party raises a constitutional challenge for the first time on appeal, our review is limited to 'plain error.” United States v. Hughes, 840 F. 3d 1368, 1385 (11th Cir. 2016) (quoting United States v. Peters, 403 F. 3d 1263, 1270 (11th Cir. 2005)). Gatlin's constitutional argument is essentially a double jeopardy challenge under the Fifth Amendment, which provides that no person may be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The "state of jeopardy attaches when a jury is empaneled and sworn, or, in a bench trial, when the judge begins to receive evidence.” United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977). The state of jeopardy terminates once “proceedings against an accused have . . . run their full course,” such as after a final verdict in the accused's favor. Justs. of Bos. Mun. Ct. v. Lydon, 466 U.S. 294, 308 (1984) (quoting Price v. Georgia, 398 U.S. 323, 326 (1970)); accord Delgado v. Fla. Dep't of Corr., 659 F. 3d 1311, 1324 (11th Cir. 2011) (“[T]he protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy." (quoting Richardson v. United States, 468 U.S. 317, 325 (1984))). A final verdict is valid only if "it is published in open court with no juror dissent,” United States v. Acevedo, 141 F. 3d 1421, 1424 n.6 (11th Cir. 1998) (citing parenthetically United States v. Taylor, 507 F. 2d 166, 168 (5th Cir. 1975)), and the verdict is accepted by the court, see Taylor, 507 F. 2d at 168 & n.2, abrogated on other grounds by United States v. Huntress, 956 F. 2d 1309, 1319 (5th Cir. 1992).

19-14969 33 going to ask you to do is to continue deliberations, understanding to come back with a guilty verdict, you have to find unanimously either: (a) that Mr. Gatlin used means of force, threats of force, or coercion to commit the crime? Or (b) that Mr. Gatlin acted in reckless disregard of the fact that the minor victim was under the age of¹⁸ years or had a reasonable opportunity to observe the minor victim. If your answers are still no to both of those, then the verdict is not guilty. You can't return a verdict of guilty unless you unanimously find and answer yes to either (a) or (b). And with that, I'll ask the clerk to give you back the verdict form and ask you to continue your deliberations. Far from forcing the jury to reach a result, the district court asked them to continue deliberating. Moreover, the instructions fairly and impartially conveyed the jury's path to either a guilty or not guilty verdict. We thus conclude that these instructions were not impermissibly coercive. In sum, our review of the record reveals no plain constitutional errors.7 7 Gatlin also asserts that he was deprived of his right to a fair trial by cumulative error. See United States v. Reeves, 742 F. 3d 487, 505 (11th Cir. 2014) (“Under the cumulative-error doctrine, we will reverse a conviction where an aggregation of non-reversible errors yields a denial of the constitutional right to a fair trial."). Since we find no error, we likewise find no cumulative error.

C. Gatlin Was Properly Sentenced.

We now turn to Gatlin's sentence-related arguments. Gatlin makes three arguments challenging his sentence: (1) that the custody, care, or supervisory control enhancement was improper; (2) that the repeat offender enhancement was improper; and (3) that his sentence was unreasonable. These arguments are not persuasive.

1. The Custody, Care, or Supervisory Control Enhancement Was

Proper. Under U.S.S.G. § 2G1.3(b)(1)(B), a defendant's offense level may be enhanced by two if "the minor was . . . in the custody, care, or supervisory control of the defendant." According to § 2G1.3's commentary, "[s]ubsection (b)(1) is intended to have broad application and includes offenses involving a victim less than¹⁸ years of age entrusted to the defendant, whether temporarily or permanently." U.S.S.G. § 2G1.3 cmt. n.2(A). In applying the enhancement, “the court should look to the actual relationship that existed between the defendant and the minor and not simply to the legal status of the defendant-minor relationship." Id. (emphasis added). And the commentary states that "teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement.” Id. In analyzing a nearly-identical section in the Guidelines— U.S.S.G. § 2G2.1—we have explained that a court's consideration of "the 'actual relationship' instead of just the 'legal status' between the defendant and the victim requires a functional

19-14969 35 approach instead of a formalistic one." United States v. Isaac, 987 F. 3d 980, 991 (11th Cir. 2021) (quoting U.S.S.G. § 2G2.1 cmt. n.5(A)). Additionally, in Isaac, this Court looked to the plain meaning of the operative phrase in § 2G2.1(b)(5)—“custody, care, or supervisory control," which is identical to the language in § 2G1.3(b)(1)(B). See id. at 991. This Court explained that “the plain meaning of stating that a child is in a person's care is simply to say the person is responsible for looking after the child's wellbeing.” Id. at 992. Gatlin argues that the § 2G1.3(b)(1)(B) enhancement was incorrectly applied to him because he and E.H. did not have any preexisting relationship. In doing so, he cites United States v. Brooks, 610 F. 3d 1186 (9th Cir. 2010), for the proposition that a defendant's role must be similar to that of a parent, relative, or legal guardian, and argues that he was not in a position of “parent-like authority." In Brooks, the Ninth Circuit concluded that § 2G1.3(b)(1)(B) "refers to a defendant's role with respect to the minor that is comparable to that of the parents, relatives, and legal guardians covered by" § 2G1.3(b)(1)(A) based on the term "otherwise" in § 2G1.3(b)(1)(B). Id. at 1200–01. The Ninth Circuit also noted that the Sentencing Commission's commentary that listed "teachers, day care providers, baby-sitters, or other temporary caretakers” as examples to whom the enhancement may apply and found that "[t]eachers, day care providers, and baby-sitters all act in loco parentis, in a position of authority over the minor that exists apart from the conduct giving rise to the offense." Id. at 1201. The court, however, did recognize that the commentary did "not expressly

36 19-14969 limit application of the enhancement to defendants with similar authority" and instructed courts to “look to the actual relationship that existed between the defendant and the minor and not simply to the legal status of the defendant-minor relationship” in applying the enhancement, which has "broad application." Id. (quoting § 2G1.3 cmt. n.2(A)). However, in Isaac, we interpreted a sentencing enhancement (§ 2G2.1) with the same language as § 2G1.3(b)(1)(B). See 987 F. 3d at 991–92. We explained that the language of the commentary was "broadly inclusive,” as it used terminology—i.e., “includes offenses involving a minor entrusted to the defendant" and "among those who would be subject to this enhancement”—that was not exhaustive. See id. at 991. Additionally, relying on the plain meaning of the term “care,” we concluded that "the plain meaning of stating that a child is in a person's care is simply to say the person is responsible for looking after the child's wellbeing." See id. at 991–92. We also recognized that the commentary required courts to consider the "actual relationship” between the victim and defendant, not just the "legal status,” and that there was no requirement of a longterm relationship between the two. See id. at 991. Given our decision in Isaac, we conclude that the Ninth Circuit's analysis in Brooks regarding § 2G1.3(b)(1)(B) is too narrow and thus decline to follow its approach. Like the enhancement at issue in Isaac, we conclude that the operative phrase in § 2G1.3(b)(1)(B)—“custody, care, or supervisory control”—is plain, i.e., "the plain meaning of stating that a child is in a person's care is

19-14969 37 simply to say the person is responsible for looking after the child's wellbeing." 987 F. 3d at 992. Further, the commentary to § 2G1.3(b)(1)(B) provides for "broad application” of the enhancement and tells us to "look to the actual relationship that existed between the defendant and the minor.” § 2G1.3 cmt. n.2(A). We thus decline to adopt the more "formalistic” view held by the Ninth Circuit, see Isaac, 987 F. 3d at 991 (determining that the actual relationship between the defendant and the victim “requires a functional approach instead of a formalistic one"), that the application of § 2G1.3(b)(1)(B) is limited to relationships between the defendant and the victim that are only "broadly comparable to that of parents, relatives, and legal guardians,” see Brooks, 610 F. 3d at 1201. Indeed, we note that the Fourth Circuit has concluded that a district court did not plainly err in applying § 2G1.3(b)(1)(B) to a case with similar facts. Cf. United States v. Muslim, 944 F. 3d 154, 169 (4th Cir. 2019) (finding no plain error in application of § 2G1.3(b)(1)(B) where (1) the minor victim moved in the defendant when she was under eighteen years old, (2) the minor victim relied on the defendant to drive her to school, and (3) the defendant provided for the victims of his prostitution ring, including the minor victim). Turning to the facts of this case, our review of the district court's factual findings in applying a sentencing enhancement is for clear error. See Trujillo, 146 F. 3d at 847; Muslim, 944 F. 3d at 167. We conclude that the district court did not clearly err in its factual findings. Indeed, the evidence shows that Gatlin did occupy a guardian-like position over E.H. Gatlin was forty-one years old when he met seventeen-year-old E.H., who promptly told him her

38 19-14969 age. Gatlin knew that E.H. was unemployed, a drug addict, and homeless after being kicked out by her grandmother. He provided E.H. with shelter and food during the relevant period. Gatlin claimed that he was trying to "change her” for the better. And on at least one occasion, Gatlin introduced himself as E.H.'s father. While Gatlin and E.H. only had a short-term relationship, § 2G1.3(b)(1)(B) does not require the defendant and the victim to have a long-term relationship. § 2G1.3 cmt. n.2(A); see Isaac, 987 F. 3d at 991–92 ("Under the plain meaning of being in someone's 'care,' D.J. was 'in the care of Isaac He had been providing D.J. and her family with the necessities of life when he picked her up in his car on the first day he molested her . . . . While D.J. was alone with him, Isaac was the adult responsible for looking after her wellbeing.”). We thus conclude that the district court did not err in applying the § 2G1.3(b)(1)(B) enhancement.

2. The Repeat-Offender Enhancement Was Proper.

U.S.S.G. § 4B1.5(b) imposes a five-level increase to a defendant's offense level if he is convicted of “a covered sex crime" and "engaged in a pattern of activity involving prohibited sexual conduct" with a minor. The commentary explains that a “pattern of activity" means that the defendant engaged in the prohibited sexual conduct on "at least two separate occasions.” U.S.S.G. § 4B1.5 cmt. n.4(B)(i). And “prohibited sexual conduct” includes violations of¹⁸ U.S.C. § 1591. See id. § 4B1.5 cmt. n.4(A) (explaining that sexual conduct includes "any offense described in¹⁸ U.S.C.

19-14969 39 § 2426(b)(1)(A)”); § 2426(b)(1)(A) (stating that a “prior sex offense conviction” is a conviction under § 1591). On appeal, Gatlin's only argument against the application of this enhancement is that he engaged in non-commercial sex with E.H., which is not prohibited by § 1591. As such, he contends that the district court improperly applied § 4B1.5(b). We disagree. The record demonstrates that Gatlin violated § 1591 repeatedly, e.g., when Gatlin first met E.H., he paid her for sex; Gatlin transported E.H. to facilitate prostitution on numerous occasions; he rented motel rooms for E.H. to facilitate prostitution; and he coached her on pricing and sexual techniques. Based on the record evidence, we conclude that the district court did not err in applying U.S.S.G. § 4B1.5(b) here.

D. Gatlin's Life Sentence Was Reasonable.

We evaluate the reasonableness of a sentence using a twostep process. First, we consider "whether the district court committed any significant procedural error.” United States v. Tome, 611 F. 3d 1371, 1378 (11th Cir. 2010). Second, we consider “whether the sentence is substantively reasonable under the totality of the circumstances." Id. As we stated in Tome, 611 F. 3d at 1378, our review is informed by the¹⁸ U.S.C. § 3553(a) factors, which are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed—

40 19-14969 (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range ...; (5) any pertinent policy statement . . . ; (6) the need to avoid unwarranted sentence disparities . . . ; and (7) the need to provide restitution to any victims of the offense. We "presume that a sentence imposed within a properly calculated United States Sentencing Guidelines range is a reasonable sentence,” Rita v. United States, 551 U.S. 338, 341 (2007), and we review the reasonableness of a sentence only for an abuse of discretion, Gall, 552 U.S. at 41. “[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation." Rita, 551 U.S. at 356.

19-14969 41 Gatlin argues both that the district court committed significant procedural errors and that his sentence is substantively unreasonable. First, he argues that the district court did not address his mental health mitigation argument that, if he received proper mental health treatment, “a sentence of life would be unreasonable.” Second, he asserts that the district court did not address his central sentencing argument that the “use of [a] computer” sentencing enhancements are unfair "given the pervasiveness of cellular communications." We conclude that Gatlin's arguments are without merit. First, the district court did not commit any procedural error as to Gatlin's mental health mitigation argument. Indeed, the district court explicitly considered Gatlin's mental health issues, stating that it understood and "considered his history with his being schizophrenic and other types of bipolar issues." Second, the lack of discussion on the fairness of computer sentencing enhancements does not make the sentence substantively unreasonable. The district court considered the PSI's recommendation, Gatlin's criminal history, his mental health issues, his likelihood to reoffend and the need to protect the public, and his prior violations of probation. Gatlin may disagree with how the district court weighed the factors, but the district court did not abuse its discretion in weighing them. See United States v. Rosales-Bruno, 789 F. 3d 1249, 1259 (11th Cir. 2015) (“The court exercised its authority to assign heavier weight to several other sentencing factors than it assigned to the guidelines range. Nothing requires a sentencing court to give the advisory guidelines range as much weight as it gives any other

42 19-14969 § 3553(a) factor or combination of factors."). This district court provided adequate reasons for its decision. Accordingly, we conclude that the district court did not abuse its discretion in sentencing Gatlin.

E. The Order of Restitution Does Not Violate Gatlin's

Sixth Amendment Rights. Finally, we turn to Gatlin's arguments regarding the order of restitution. Pursuant to¹⁸ U.S.C. § 3663A(a)(1), the district court was required to order "that the defendant make restitution to the victim” in this case. The government bears the burden of proof to demonstrate "the proper amount [and] type of restitution . . . by the preponderance of the evidence." Id. § 3664(e). In doing so, it may rely on any “evidence bearing 'sufficient indicia of reliability to support its probable accuracy.” United States v. Singletary, 649 F. 3d 1212, 1217 n.21 (11th Cir. 2011) (quoting United States v. Bernardine, 73 F. 3d 1078, 1080–81 (11th Cir. 1996)). This includes the evidence adduced at trial. See United States v. Hairston, 888 F. 2d 1349, 1353 (11th Cir. 1989) (“[T]he record provides an adequate basis upon which to review the district court's restitution order."). Where there are "difficulties in determining exactly how much" restitution is required, a district court does not abuse its discretion by "accepting a reasonable estimate." United States v. Futrell, 209 F. 3d 1286, 1291–92 (11th Cir. 2000). Following a restitution hearing where it heard from both the government and the defense, including from Gatlin himself, the district court ordered Gatlin to pay $1,700 in restitution. The

19-14969 43 district court ordered that amount based on the evidence that E.H. was employed by Gatlin and turned money over to him, and that Gatlin took E.H.'s personal items with him when he left her at the convenience store bathroom. On appeal, Gatlin raises three arguments regarding the restitution order. First, he asserts that a restitution order must be put to a jury under Apprendi v. New Jersey, 530 U.S. 466 (2000). According to Gatlin, in Southern Union Co. v. United States, 567 U.S. 343 (2012), the Supreme Court held that “Apprendi applies to the imposition of criminal fines.” Id. at 360. However, we explicitly rejected this argument in Dohrmann v. United States, 442 F. 3d 1279, 1281 (11th Cir. 2006), where we held that Apprendi does not apply to restitution orders because the restitution statute,¹⁸ U.S.C. § 3663, does not have a prescribed statutory maximum. To the extent that Gatlin contends that Dohrmann was abrogated by Southern Union, we disagree. As the Seventh Circuit has explained, “Southern Union and the scope of Apprendi only come into consideration if we first conclude restitution is a criminal penalty. We decline to reach such a conclusion." United States v. Wolfe, 701 F. 3d 1206, 1217 (7th Cir. 2012). Moreover, Southern Union does not discuss restitution, let alone hold that Apprendi should apply to it. Therefore, because the⁸ Gatlin does not argue that the district court erred in awarding restitution for E.H.'s lost prostitution profits because they are proceeds from illegal activity, see generally United States v. Taylor, 62 F. 4th 146 (4th Cir. 2023), and we therefore do not address the issue.

44 19-14969 restitution order of $1,700 concerns a restitution and not a criminal fine, Gatlin's first argument is unavailing. Second, Gatlin asserts that the district court's delay in holding the restitution hearing deprived the court of its ability to order restitution. See 18 U.S.C. § 3664(d)(5) (“If the victim's losses are not ascertainable by the date that is¹⁰ days prior to sentencing, . . . the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing."). Here, too, binding precedent demands the opposite conclusion. As the Supreme Court has explained, "a sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution" if it "made clear prior to the deadline's expiration that it would." Dolan v. United States, 560 U.S. 605, 608 (2010); accord United States v. Rodriguez, 751 F. 3d 1244, 1260 (11th Cir. 2014). And the district court here did so at the sentencing hearing, stating that "restitution is mandatory and shall be ordered." Lastly, Gatlin argues that there was insufficient evidence to support the restitution award. He raises essentially two issues with the evidence. First, he contends that some of the evidence used to estimate the total was unsworn. Second, he asserts that the estimate was not specific enough. We reject both of Gatlin's arguments. First, evidence used to estimate a restitution total need not be sworn; it merely must "bear[] 'sufficient indicia of reliability to support its probable accuracy.'" Singletary, 649 F. 3d at 1217 n.21 (quoting Bernardine, 73 F. 3d at 1080–81); see also Hairston, 888 F. 2d at 1353 ("The fact that the

19-14969 45 [evidence] is hearsay . . . does not bar the trial judge from considering it in forming the order of restitution."). Second, the district court does not abuse its discretion when it accepts “a reasonable estimate" of the amount of restitution, and “the restitution amount may be approximated." Futrell, 209 F. 3d at 1291–92. And here, the record shows that Gatlin was E.H.'s pimp. Because Gatlin and E.H. met in mid-October and separated on November³⁰, we can infer that she worked for him for about five weeks. The testimony presented at trial established that during that time, E.H. charged "[$]40 for head, [$]60 for 15 minutes, [$]80 for³⁰ minutes, and [$]100 for a[n] hour” in Miami, and “[$]150 for 15 minutes, [$]200 for³⁰ minutes, and [$]300 for a[n] hour” in the Florida Keys. The district court was entitled to rely on this evidence in calculating the restitution amount—again, an amount that may be approximated, see id.—and we conclude that the amount the district court ultimately calculated, $1,700, was supported by the record. We thus conclude that the district court did not err in its calculation of the restitution amount and did not violate Gatlin's rights.

IV. CONCLUSION

For the reasons stated, we affirm Gatlin's convictions and sentences as to Counts¹ and 2. We also affirm the district court's restitution order. But we vacate his sentence and conviction as to Count 3. AFFIRMED IN PART and REVERSED IN PART.

5 "actively concealed from the minor the fact that he was videotaping her," gave her “specific instructions regarding certain positions he wanted her to assume relative to the camera,” and “instructed her on what to say while the camera recorded their activities”). This is also not a case where the number or volume of sexually explicit recordings or depictions may be indicative of purpose. See, e.g., United States v. Ortiz-Graulau, 526 F. 3d 16, 18–19 (1st Cir. 2008) (evidence was sufficient where the defendant took over fifty pictures because the “number of photographs permit[ted] a strong inference that some of the conduct occurred in order to make the photographs"). There was, in other words, no circumstantial evidence aside from the single photo itself from which a jury could infer that the sexual activity with E.H. was for the "purpose" (in the words of the statute) of producing child pornography. The government's theory at closing argument seems to have been that the mere taking of the photograph established Mr. Gatlin's antecedent purpose to produce child pornography. See D.E. 211 at 118, 122. That theory is, in my view, legally unsound. See, e.g., United States v. McCauley, 983 F. 3d 690, 696–97 (4th Cir. 2020) ("Accordingly, § 2251(a) does not criminalize a spontaneous decision to create a visual depiction in the middle of sexual activity without some sufficient pause or other evidence to demonstrate that the production of child pornography was at least a significant purpose. Adducing a purpose' arising only at the moment the depiction is created erroneously allows the fact of taking an explicit video of a minor to stand in for the motivation that animated the decision to do so. It is for this reason that while the image itself can