Case: 12-10029   Document: 00512747031     Page: 1   Date Filed: 08/26/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                 No. 12-10029                             FILED
                                                                    August 26, 2014
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

                                           Plaintiff–Appellee
v.

CHANZE LAMOUNT PRINGLER,

                                           Defendant–Appellant



                Appeal from the United States District Court
                     for the Northern District of Texas


Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Following a jury trial, Defendant–Appellant Chanze Lamount Pringler
(“Pringler”) was convicted of aiding and abetting sex trafficking of a minor in
violation of 18 U.S.C. § 1591(a) and sentenced to 405 months of imprisonment
and 10 years of supervised release.      Pringler appeals his conviction and
sentence, challenging: (1) the sufficiency of the evidence; (2) the effectiveness
of his trial counsel’s performance; and (3) the calculation of his sentence under
the U.S. Sentencing Guidelines. For the reasons below, we affirm.
                              I. BACKGROUND
      B.L., ran away from foster care while her mother was in prison. She was
sixteen-years-old at the time. While away from the foster care home and
staying with acquaintances, B.L. met the defendant, Chanze Pringler. Two to
    Case: 12-10029       Document: 00512747031   Page: 2   Date Filed: 08/26/2014



                                  No. 12-10029
three weeks after their first meeting, B.L. contacted Pringler looking for a place
to stay for the night. Pringler rented a motel room for B.L., where she spent
the night alone. The next morning, Pringler took her to stay at another motel
with his girlfriend, Megan Norman (“Norman”). Pringler and B.L. soon began
a sexual relationship.
      Norman had been prostituting herself, working out of motel rooms and
finding patrons by posting advertisements on the website backpage.com.
Norman introduced B.L. to prostitution and began posting advertisements on
backpage.com using B.L.’s picture. At first, Norman and B.L. saw patrons
together, but eventually, B.L. saw patrons alone. One such encounter was
captured in a video recorded by a camera in a laptop computer in the motel
room where they were staying. The laptop computer belonged to Pringler, who
had bought it for Norman to use. Pringler moved B.L. and Norman through at
least three different hotels or motels during the course of the prostitution.
      On March 16, 2011, an undercover agent responded to an online ad
posted by Norman and arranged to have sex with Norman and B.L. When the
officer arrived at the address that Norman gave the agent, he observed
Pringler in the parking lot conducting surveillance. The officer entered the
room and negotiated to have intercourse and oral sex with both females, after
which Norman and B.L. were arrested. B.L. was transported to a juvenile
facility but was released to a case worker because she was under the influence
of marijuana. B.L. subsequently ran away.
      On March 30, 2011, an undercover agent again responded to an online
ad and arranged to have sex with Norman and B.L. at a hotel. When the
“takedown team” arrived at the hotel, they observed Pringler’s vehicle in the
parking lot. A few minutes later, they saw Pringler exit the hotel, walk to his
vehicle, and remain parked and on the telephone. The undercover officer
                                        2
    Case: 12-10029    Document: 00512747031        Page: 3   Date Filed: 08/26/2014



                                    No. 12-10029
entered the hotel room where Norman and B.L. were waiting. The females
agreed to have sex for money, after which Norman and B.L. were arrested.
Inside the room, officers seized, among other things, a laptop computer that
belonged to Pringler and a receipt for the hotel room indicating that Pringler
had paid for it. Pringler was subsequently arrested following a traffic stop.
Among the items seized was a bill of sale for the hotel room where Norman and
B.L. were arrested on March 30, 2011.
      Pringler was indicted in federal court for aiding and abetting the sex
trafficking of a minor in violation of 18 U.S.C. § 1591(a) and 18 U.S.C. § 2.
Pringler pled not guilty to the charge and had a three-day jury trial after which
he was found guilty. The probation officer recommended numerous sentencing
enhancements for Pringler’s sentence, including (1) a two-level increase on the
basis that he unduly influenced a minor to engage in prohibited sexual conduct
under U.S.S.G. § 2G1.3(b)(2)(B) and (2) Pringler’s crime involved the use of a
computer to entice or solicit another person to engage in prohibited sexual
conduct with a minor. Pringler challenged these Guidelines calculations but
the district court overruled his objections. The district court adopted the PSR
and sentenced Pringler within the advisory guidelines range of 405 months’
imprisonment and 10 years of supervised release. Pringler filed a timely notice
of appeal.
                            II.     JURISDICTION
      The district court had jurisdiction over this criminal case under 18
U.S.C. § 3231. This court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a) over the appeal of this final judgment and sentence.
                             III.    DISCUSSION
      Pringler brings three issues on appeal. He challenges (1) the sufficiency
of the evidence for his conviction of aiding or abetting a crime under 18 U.S.C.
                                         3
    Case: 12-10029     Document: 00512747031      Page: 4   Date Filed: 08/26/2014



                                  No. 12-10029
§ 1591(a); (2) in the alternative, he argues that his trial counsel was ineffective
for failing to move to acquit at the close of the government’s evidence,
preventing him from receiving relief before our court; and (3) he challenges the
district court’s application of two sentencing enhancements under the U.S.
Sentencing Guidelines. We address each in turn.
A. Sufficiency of the Evidence
      Pringler first argues that the evidence is insufficient to support his
conviction for aiding and abetting the sex trafficking of a minor.
      Ordinarily we review a challenge to the sufficiency of a jury verdict by
asking “‘whether a rational jury could have found each essential element of the
offense beyond a reasonable doubt.’” United States v. Delgado, 

,
330 (5th Cir. 2012) (en banc) (quoting United States v. Pennington, 

,
597 (5th Cir. 1994)). The parties agree, though, that Pringler’s trial counsel
failed to move for a judgment of acquittal at the close of the government’s case.
As a result, we review this unpreserved claim instead for plain error and reject
the challenge “unless the record is devoid of evidence pointing to guilt or if the
evidence is so tenuous that a conviction is shocking” or amounts to “a manifest
miscarriage of justice.” 

(citations and internal quotation marks
omitted).
      The essential elements of sex trafficking of a minor under 18 U.S.C.
§ 1591(a) are
      (1) that the defendant knowingly recruited, enticed, harbored,
      transported, obtained or maintained [the victim]; (2) that the
      recruiting, enticing, harboring, transporting, providing, obtaining
      or maintaining of [the victim] was in or affecting interstate or
      foreign commerce, and (3) that the defendant committed such act
      knowing or in reckless disregard of the fact . . . that [the victim]
      was under the age of 18 years of age and would be caused to engage
      in a commercial sex act.

                                        4
     Case: 12-10029        Document: 00512747031          Page: 5     Date Filed: 08/26/2014



                                        No. 12-10029
United States v. Garcia–Gonzalez, 

, 312 (5th Cir. 2013)
(alterations in original) (internal quotation marks omitted).                      To hold a
defendant liable for aiding and abetting an offense, the government must show
that elements of the substantive offense occurred and that the defendant
“associate[d] with the criminal activity, participate[d] in it, and acted to help
it succeed.” United States v. Delgarza–Villareal, 

, 140 (5th Cir.
1997).
       Pringler claims on appeal that the government has not proven the
elements necessary to establish aiding and abetting liability, because it has
only shown his “mere presence” at the scene of the crime. He supports this
argument by pointing to the fact that Norman and B.L. advertised themselves
as “independent” prostitutes on websites.
       We disagree. The record is not devoid of evidence to support the jury’s
verdict and show Pringler’s integral role in the criminal venture. Pringler took
the money that Norman and B.L. earned from their prostitution and used some
of it to pay for hotel rooms where the women met their patrons. Pringler
bought the laptop Norman and B.L. used to advertise their services. He drove
Norman and B.L. to “outcall” appointments, and he took photographs of
Norman, which he had planned for use in advertisements. Therefore, we hold
that the record is not so insufficient that the conviction amounts to plain error.
B. Ineffective Assistance of Counsel
       In the alternative, Pringler argues that his trial counsel rendered
ineffective assistance by failing to move for acquittal on the aiding and abetting
count. 1


       1 A claim of ineffective assistance of counsel is ordinarily not reviewed on direct appeal
unless it has been addressed by the district court. United States v. Armendariz–Mata, 

, 156 (5th Cir. 1991). In the interest of efficiency, however, we have considered
                                               5
     Case: 12-10029       Document: 00512747031         Page: 6     Date Filed: 08/26/2014



                                       No. 12-10029
       To prevail on his ineffective assistance claim, a defendant must establish
that (1) his counsel’s performance fell below an objective standard of
competence and (2) the deficient performance prejudiced his defense.
Strickland v. Washington, 

, 687 (1984). “If proof of one element is
lacking, the court need not examine the other.” Kirkpatrick v. Blackburn, 

, 285 (5th Cir. 1985). To establish prejudice, the defendant usually
“must show that ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’”
United States v. Anderson, 

, 261 (5th Cir. 1993) (quoting

).
       Pringler argues that, but for counsel’s failure to move for acquittal, there
was a reasonable probability that this court would grant relief under de novo
review of his insufficiency of the evidence claim. See 

. Under this review, our court still would review the evidence in the light
most favorable to the jury verdict. 

more capacious review
afforded on his ineffectiveness claim, Pringler raises no further arguments that
the evidence was insufficient than the one mentioned above in Part A.
Therefore, at most, Pringler only reiterates that there was insufficient
evidence on aiding and abetting liability, not on any of the underlying
substantive elements under § 1591(a).
       In our review above, we concluded that the record was not “devoid” of
evidence of aiding and abetting liability. Now, we conclude that a rational jury
could have found each essential element of the offense beyond a reasonable



claims concerning a failure to move for acquittal on direct appeal, reasoning that the record
generally contains all of the evidence that could be developed with respect to the defendant’s
claim that his trial counsel was ineffective. United States v. Rosalez–Orozco, 

, 199
(5th Cir. 1993).
                                              6
    Case: 12-10029     Document: 00512747031   Page: 7   Date Filed: 08/26/2014



                                No. 12-10029
doubt. As we noted above, evidence shows that Pringler was involved in many
aspects of the criminal activity, helping it to succeed in numerous ways. He
controlled the money, obtained accommodations, purchased the laptop
computer used to solicit patrons, and transported Norman and B.L. to their
appointments.
      In addition, we find Pringler’s only point that might create a doubt is
implausible. He argues that that Norman and B.L. advertised themselves as
independent, showing he was not involved. But as the government drew out
in testimony and as a rational juror might well infer, Norman and B.L.’s
representations in their advertisements were not always truthful. No evidence
that Pringler points to creates a reasonable doubt, weighing all inferences in
favor of the jury verdict.
      Therefore, any deficient performance by Pringler’s counsel did not
prejudice him.
C. Sentencing
      Pringler argues that (1) the district court erred in applying a two-level
enhancement for using a computer to entice, encourage, or solicit persons to
engage in prohibited sexual conduct with minors pursuant to U.S.S.G.
§ 2G1.3(b)(3)(B); and (2) the district court erred in applying a two-level
enhancement for unduly influencing a minor to engage in prohibited sexual
conduct under U.S.S.G. § 2G1.3(b)(2)(B).
      We review a district court’s sentencing decision for abuse of discretion.
Gall v. United States, 

, 51 (2007). The court must “ensure that the
district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
                                      7
    Case: 12-10029        Document: 00512747031      Page: 8   Date Filed: 08/26/2014



                                     No. 12-10029
chosen sentence.” 

harmless error review to any procedural error.
United States v. Neal, 

, 274 (5th Cir. 2009); see Fed. R. Crim. P.
52(a).
         This Court reviews the district court’s interpretation and application of
the Sentencing Guidelines de novo. United States v. Richardson, 

,
237 (5th Cir. 2013). Factual findings underlying the district court’s application
of the Guidelines are reviewed for clear error. United States v. Serfass, 

, 550 (5th Cir. 2012) (internal quotation marks omitted). “There is no
clear error if the district court’s finding is plausible in light of the record as a
whole.” 

marks omitted). “A finding of fact is clearly
erroneous only if, after reviewing all the evidence, [the Court is] left with the
definite and firm conviction that a mistake has been committed.” 

Use Enhancement
         The district court increased Pringler’s advisory range under U.S.S.G.
§ 2G1.3(b)(3)(B) based on the use of a computer in the offense.               Section
2G1.3(b)(3) provides for a two-level increase to the defendant’s base offense
level:
         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, 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 Commentary to the Sentencing Guidelines 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.

cmt. n.4.


                                           8
    Case: 12-10029    Document: 00512747031     Page: 9   Date Filed: 08/26/2014



                                 No. 12-10029
      The parties disagree over the legal significance of application note 4.
Pringler argues that §2G1.3(b)(3) does not apply to the facts of this case under
application note 4. Since Pringler met B.L. in person, he did not “use . . . a
computer . . . to communicate directly with a minor” or “with a person who
exercises custody, care, or supervisory control of the minor.” Citing Stinson v.
United States, 

, 38 (1993), the government responds that where the
commentary is inconsistent with the Guideline it purports to interpret, it does
not control our application of that guideline. The government also argues that,
even if we apply application note 4, the district court was correct to apply the
computer-use enhancement because Pringler exercised custody and control
over B.L. Therefore, third parties that contacted Pringler using a computer in
response to website advertisements had “communicate[d] directly with . . . a
person who exercises custody . . . of the minor.”
      We note at the outset that if we were to apply note 4, Pringler would be
ineligible for the computer use enhancement. Nothing in the record reflects
that he or Norman used a computer “to communicate directly with a minor or
with a person who exercises custody, care, or supervisory control of the minor.”
We reject the government’s contention that the circumstances of this case could
simultaneously satisfy application note 4 and the computer use enhancement.
According to that argument, which is based on the unpublished Third Circuit
decision in United States v. Burnett, 377 F. App’x 248, 252 (3d Cir. 2010)
(unpublished), a pimp could use a computer to advertise or solicit sex with the
minor. A third party seeking to have sex with the minor would contact the
pimp using a computer. The third party in that scenario might assume the
pimp had custody or control over the minor. Then, the facts would meet the
requirement of application note 4, because the third party would have used a


                                       9
    Case: 12-10029      Document: 00512747031         Page: 10    Date Filed: 08/26/2014



                                     No. 12-10029
computer to communicate directly “with a person who exercises custody, care,
or supervisory control of the minor.”
      The problem with Burnett’s reasoning is that it would make the relevant
“use of the computer” the third party’s use. That would satisfy the language
of application note 4 by having the third party communicate in some instances
with a pimp, who has control or custody over the minor. But, the third party’s
“use” cannot be the “use” referred to in Subsection 3(B). Reading the third
party’s “use” back into the language of the Guideline, the third party does not
“use the computer” to entice another to engage in sexual activity with the minor
as Subsection 3(B) requires. He is instead using the computer to try to arrange
to engage in sexual activity with the minor himself. So, we cannot follow the
Third Circuit’s attempt to harmonize Subsection 3(B) and application note 4.
      Consequently, we must decide whether the computer use enhancement
§ 2G1.3(b)(3) applies to uses of the computer beyond the scenarios mentioned
in application note 4. We have reason to avoid giving effect to an interpretive
or explanatory application note only if we determine that the note “is
inconsistent with, or a plainly erroneous reading of” the Guideline. 

. Whether application note 4 to § 2G1.3(b)(3) meets this test is
an issue of first impression in this circuit. 2
      Guideline § 2G1.3(b)(3) contemplates two distinct scenarios in which the
computer use enhancement might apply. Under the first scenario, Subsection



      2  In United States v. Phea, 12-51031, 

(5th Cir. June 13, 2014), we
recently upheld a sentence under Guideline § 2G1.3(b)(3)(A), where the defendant “used a
computer to facilitate the travel of” a minor and “used a computer to communicate” with the
minor for two days. 

Since the defendant in that case had used a computer to
communicate directly with a minor, the Phea court did not have occasion to address the
inconsistency between additional note 4 and the Guideline. Phea also did not address a
sentencing enhancement under (b)(3)(B) of the Guideline.
                                            10
   Case: 12-10029    Document: 00512747031      Page: 11   Date Filed: 08/26/2014



                                 No. 12-10029
(3)(A) involves the use of a computer to persuade a minor to engage in
prohibited sexual conduct. In the second, by contrast, Subsection 3(B) involves
the use of a computer to persuade, solicit, or entice a third party “john” to
engage in prohibited sexual conduct with the minor. “‘Subsection [3](B), which
applies when the defendant entices ‘a person’ to engage in illegal sexual
conduct with the minor, does not apply without three people—the defendant,
the minor, and the third person who is being enticed.’”       United States v.
Murphy, 530 F. App’x 522, 524 n.1 (6th Cir. 2013) (unpublished) (quoting
United States v. Lay, 

, 448 (6th Cir. 2009) (Merritt, J., dissenting
in part) (emphasis added)) (internal quotation marks omitted).
      Our sister circuits that have confronted computer use enhancements
under the third party inducement scenario have divided on the proper
approach. Two circuits, the Eleventh and the Fourth, have found application
note 4 inapplicable and relied on the plain meaning of the Guideline alone in
upholding computer use sentencing enhancements under Subsection (3)(B).
The Fourth Circuit found that the defendant’s advertisement and solicitation
of customers using the Internet “fall[s] squarely within the plain language of
the Guideline” and remarked that “Application Note 4 . . . appears to address
only the situation posited in [Subsection] (3)(A).” United States v. Winbush,
524 F. App’x 914, 916 (4th Cir. 2013). The Eleventh Circuit similarly rejected
an argument that “the [Subsection 3(B)] enhancement is inapplicable in [the
defendant’s] case because he did not personally solicit the minors.” United
States v. Vance, 

, 997 (11th Cir. 2007), superseded on other
grounds by U.S.S.G. supp. to app. C, amend. 732 (2009). The court found that
this argument “ignores the plain meaning” of the Guideline, and the
defendant’s communication on a website with a supposed pimp, whom the
defendant assumed would provide minors for sexual activities, “squarely fit
                                      11
    Case: 12-10029       Document: 00512747031          Page: 12     Date Filed: 08/26/2014



                                       No. 12-10029
into the plain language.” Id; see also Murphy, 530 F. App’x at 528 (assuming
that Subsection (3)(B) applied without discussing application note 4 where the
defendant “took photographs of [the minor] that he uploaded onto his computer
and burned onto compact discs” which were eventually used in flyers for his
escort business). 3
       Other circuits have reached a different conclusion and found application
note 4 to be authoritative.         The Seventh and Third Circuits each applied
application note 4, though to reach opposite results. The Seventh Circuit found
the enhancement inapplicable based on application note 4’s language, where
internet ads for the defendant’s minor prostitute were posted by another minor
who was working for a different pimp. United States v. Patterson, 

, 434, 443 (7th Cir. 2009).           In contrast, the Third Circuit found the
enhancement applicable even in light of application note 4’s language, where
the defendant made postings related to a minor prostitute on craigslist.org.
Burnett, 377 F. App’x at 252. The Burnett court found that its application of
the (b)(3)(B) enhancement was not inconsistent with application note 4,
because the pimp “exercised a type of ‘supervisory control’ over [the minor




       3 In addition, on plain error review, the Ninth Circuit has noted, without deciding,
that the plain language of Subsection 3(B) “would seemingly apply to the facts of this case
because it contemplates using a computer to entice or solicit a third party—the ‘person’—to
engage in prohibited sexual conduct with the minor” while application note 4 “indicates, . . .
that § 2G1.3(b)(3) would not apply to the facts of this case because the computer was not used
to communicate directly with the minor or her custodian.” United States v. Jackson, 

, 1145 (9th Cir. 2012) (declining to decide whether the plain language is inconsistent
with the application note and upholding the enhancement on the ground that the district
court did not commit plain error); see also United States v. Madkins, 390 F. App’x 849, 852
(11th Cir. 2010) (acknowledging that a “persuasive case has been made that the commentary
[of application note 4] is at odds with the plain language of the [Subsection 3(B)]
enhancement” but declining to reach the issue on plain error review).

                                             12
    Case: 12-10029      Document: 00512747031         Page: 13    Date Filed: 08/26/2014



                                     No. 12-10029
prostitute]” and “individuals who responded to the postings must have believed
so.” 

persuaded by the Fourth and Eleventh Circuits and hold that
application note 4 is inconsistent with Subsection 3(B). 4 If we were to give
application note 4 controlling weight, it would render Subsection 3(B)
inoperable in all but a narrow subset of cases under only one of the numerous
criminal statutes the Guideline covers. In fact, under § 1591, there is no
factual scenario for which an individual could receive the computer use
enhancement, were we to apply application note 4. In light of the Guideline’s
drafting history, we also conclude that application note 4’s coverage of
Subsection 3(B) is itself the result of a drafting error.
       We can come up with no scenario in which conduct made criminal by
§ 1591 could satisfy both Subsection 3(B) and application note 4. Rather, we
can conceive of only one scenario in which other criminal offenses could satisfy
both provisions. See U.S.S.G. § 2G1.3 cmt. (noting that the Guideline covers
not just individuals convicted under 18 U.S.C. § 1591, but also under 8 U.S.C.
§ 1328 (if the offense involved a minor); 18 U.S.C. §§ 2421 (if the offense
involved a minor), 2422 (if the offense involved a minor), 2423, and 2425).
Section 2422(b) criminalizes “knowingly persuad[ing], induc[ing], entic[ing], or
coerc[ing] any individual who has not attained the age of 18 years, to engage
in prostitution or any sexual activity for which any person can be charged with



      4  Pringler urges us to follow the Seventh Circuit’s approach in Patterson, finding
application note 4 authoritative and finding the enhancement inapplicable. We decline to do
so. The Seventh Circuit case is distinguishable on the facts. There, neither the defendant
nor someone part of the same criminal activity used a computer to solicit patrons. See

. The enhancement would not have been applicable, irrespective
of application note 4.

                                            13
   Case: 12-10029     Document: 00512747031        Page: 14   Date Filed: 08/26/2014



                                    No. 12-10029
a criminal offense.” 18 U.S.C. § 2422(b). An individual could commit that
crime by using a computer to communicate with the minor’s custodian in order
to persuade the minor to engage in prohibited sexual activity, either with the
defendant or the custodian. See, e.g., United States v. Berk, 

, 140
(1st Cir. 2011) (affirming conviction under § 2422(b), where defendant
communicated with a minor’s custodian over the Internet); United States v.
Nestor, 

, 161–62 (3d Cir. 2009) (same).
      Based on our review, no other scenario would make the application note
consistent with Subsection 3(B). Therefore, if we were to give application note
4 controlling weight, it would render Subsection 3(B) inoperable in all but this
narrow subset of cases under only one of the criminal statutes the Guideline
covers. This leads us to conclude that the application note “can’t mean what it
says.” Green v. Bock Laundry Mach. Co., 

, 510–11 (1989).
      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 F. App’x 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:


                                        14
    Case: 12-10029      Document: 00512747031        Page: 15    Date Filed: 08/26/2014



                                    No. 12-10029
      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, as 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. 

33. The Commission
thereby amended the Guidelines by moving the previous language and
commentary of § 2G1.1 involving minors 5 to a new section § 2G1.3 at the end
of subpart 1. 

Thus came into being the new troublesome language
of application note 4. The new application note mirrors the language of the 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.
      For the foregoing reasons, we hold that the commentary in application
note 4 is “inconsistent with” Guideline § 2G1.3(b)(3)(B), and we therefore follow
the plain language of the Guideline alone. 

; cf. United



      5With a few semantic changes, like “Internet access device” changed to “interactive
computer service.”
                                           15
    Case: 12-10029      Document: 00512747031        Page: 16     Date Filed: 08/26/2014



                                     No. 12-10029
States v. Ashburn, 

, 1340–41 (5th Cir. 1994) (refusing to apply
application note 6 to U.S.S.G. § 2B3.1(b)(2)(F) because the note “would
contradict the language of the Guidelines”), vacated in non-relevant part, 

(5th Cir. 1994) (en banc).
      Applying the language of the Guideline alone, we conclude that the
district court did not err in applying the computer use enhancement on these
facts. 6 Pringler owned the computer that Norman repeatedly used to advertise
her services on websites. Based on Norman’s testimony, Pringler bought the
computer, showed her how to use the webcam feature on the computer, knew
that Norman and B.L. were using the webcam to capture video of their
encounters with customers, and knew of Norman’s use of the computer for
advertising B.L.’s services. Therefore, the district court could conclude that
the offense involved the use of a computer to induce third parties to engage in
sexual activity with a minor.
      2. Undue Influence of a Minor Enhancement
      Over Pringler’s objection, the district court increased Pringler’s offense
level by two under U.S.S.G. § 2G1.3(b)(2)(B) based on its conclusion that
Pringler exerted undue influence over B.L. during the offense.                   Section
2G1.3(b)(2)(B) provides for the two-level increase if “a participant otherwise
unduly influenced a minor to engage in prohibited sexual conduct[.]” Section
2G1.3(b)(2)(B) requires the district court to “closely consider the facts of the
case to determine whether a participant’s influence over the minor
compromised the voluntariness of the minor’s behavior.”                     U.S.S.G. §
2G1.3(b)(2) cmt. n.3(B).



      6 Pringler does not challenge the adequacy of the evidence under the language of the
Guideline, only under application note 4.
                                           16
    Case: 12-10029    Document: 00512747031     Page: 17   Date Filed: 08/26/2014



                                 No. 12-10029
      Pringler contends that B.L. engaged in prostitution of her own volition.
The government responds that significant evidence presented at trial supports
the district court’s determination.
      This Court has upheld the application of the undue-influence provision
where victims testified to their fear of leaving. See United States v. Anderson,

, 283 (5th Cir. 2009). In this case, the victim likewise testified to
her fear of leaving. B.L. testified that Pringler told her “You can’t run from
me” and “You’re not going anywhere.” Pringler also would ask B.L. “Are you
going to leave me?” B.L. explained that, as a result of Pringler’s statements
and questions, she did not think that she could leave. B.L. also testified about
Pringler’s physical abuse of Norman and to unlawful sexual relations with her
pimp. The government also presented testimony from a police officer with
significant experience investigating prostitution, who explained that physical
abuse of one person in the presence of another can be used to control the person
who is watching. The officer also testified that sexual relations between a pimp
and his prostitute is another control mechanism. The district court therefore
had ample evidence with which to find that Pringler “compromised the
voluntariness of [B.L.’s] behavior.” U.S.S.G. § 2G1.3(b)(2) cmt. n.3(B). There
is no clear error here.
                              IV. CONCLUSION
      In conclusion, we AFFIRM the conviction and sentence.




                                       17