[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 10313 Non

- Argument Calendar

________________________ D.C. Docket No. 9:13

- cr - 80082

- KAM

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus GARY JAY GOLDBERG, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (November 20, 2014) Before MARTIN , JULIE CARNES , and ANDERSON , Circuit Judges. PER CURIAM:

Case: 14-10313 Date Filed: 11/20/2014 Page: 1 of 52 Gar y Jay Goldberg appeals his below

- guideline, 1 56

- month sentence, imposed after he pleaded guilty to one count of enticing a minor to engage in sexual activity

. Goldberg argues that the district court erred in applying a two

level sentence enhancement for unduly influencing a minor to engage in prohibited sexual conduct

. After careful consideration, we affirm. I. We review a district court’s interpretation and application of the Sentencing Guidelines de novo and its findings of fact for clear error

. United States v. Bane , 720 F.3d 818 , 824 (11th Cir. 2013)

. For a finding to be clearly erroneous, we “must be left with a definite and firm conviction that a mistake has been committed.” United States v. Rothenberg , 610 F.3d 621, 624 (11th Cir. 2010) ( ci tation omitted). Uni ted States Sentencing Guideline 2G1.3(b)(2)(B) requires a two

- level enhancement if the district court finds that the defendant “unduly influenced a minor to engage in prohibited sexual conduct.” In determining whether to apply the enhancement , the district court “should closely consider the facts of the case to determine whether [ the defendant’s] influence over the minor compromised the voluntariness of the minor’s behavior.” USSG § 2G1.3, comment

. n.3 (B)

. To assess whether the de fendant’s conduct constitutes un due influence, “ the district court may look to a variety of factors , including whether the defendant displays an

Case: 14-10313 Date Filed: 11/20/2014 Page: 2 of 53 abuse of superior knowledge, influence and resources. ” United States v. Panfil , 338 F.3d 1299, 1303 (11th Cir. 2003) (per curiam) ( citation omitted )

. 1 A rebuttable presumption of undue influence applies where, as here, the defendant is at least ten years older than the minor victim . U S SG § 2G1.3, comment

. n.3 (B)

. II. Goldberg pleaded guilty to enticing a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b)

. According to the unchallenged factual basis of his plea, Goldberg sent a text message to M W , aged fifteen, saying “Let’s play,” with a smiley face; he also sent a photo of fanned

- out United S t ates currency to MW, accompanied by a message ask ing “Can you and me hang out?” The same day, h e picked up MW and her friend JS, aged seventeen , and drove them to his office, where he gave them alcohol and one hundred dollars each to allow him to take sexually explicit pictures of them. H e then drove them to a nearby gas station, where he performed oral sex on MW in the gas

- station bathroom. Acc ording to the Presentence Investigation Report , Goldberg also communicated via text message with JS. JS asked him for money and cigarettes ,

1 In Panfil we discussed the factors a district court may evaluate when considering whether to enhance a defendant’s sentence under USSG § 2A3.2(b)(2)( B)(ii)

. See Panfil , 338 F.3d at 1303

. That section , which is not the one at issue here, applies to a different sex crime against minors, but it has an identical threshold requirement: the defendant must have “unduly influenced the minor to engage in prohibited sexual conduct.” USSG § 2A3.2(b)(2)(B)(ii) ; see also USSG § 2G1.3(b)(2)(B) (requiring that the defendant “unduly influenced a minor to engage in prohibited sexual conduct”)

. Therefore , we have “previously held that our interpretation of the un due influence enhancement under [the former section ] applie[s] to [the latter] .” United States v. Jerchower , 631 F.3d 1181, 1186 n.2 (11th Cir. 2011)

.

Case: 14-10313 Date Filed: 11/20/2014 Page: 3 of 54 and in response he asked for pictures of her , which she sent. JS reported that on other occasions , Goldberg drove her places and gave her money

. O n one such occasion, while she was in the front seat of his car, Goldberg asked her to pull down her pants so he could take a picture of her genital area. On this evidence, t he probation officer determined that the undue

- influence enhancement applied

. Goldberg objected. Though he “acknowledge[d] some degree of influence based on the age difference between him and M

. W

. and J

. S

. ,” and admitted to paying them money, he maintained that the “degree of [his] inf luence was countered by the voluntary and assertive participation of M

. W

. and J

. S

. ” He contended that because MW and JS “were already immersed in a lifestyle of drugs, parties, and sex[]” before meeting him , as evidenced by their text message conversation s , they “were voluntary participants motivated by money, drugs, and parties

. ” He insisted that he did not coerce, threat en , force, or persuade them to participate

. He explained that the first contact between himself and the minors was when he gave MW his business card at a gas station , and that it was MW and JS who later contacted him asking to arrange a meeting

. The government responded that the enhancement was justified because Goldberg “took advantage of minors who . . . had a drug problem,” and who “wanted money.” Goldberg , the government explained, “had money, and he used money to entice them,” as evidenced by the picture of fanned

- out currency he sent

Case: 14-10313 Date Filed: 11/20/2014 Page: 4 of 55 to MW. The government introduced a text

- message conversation between MW and JS on the day Goldberg took them to his office, gave them money and alcohol, and had sexual contact with MW at the gas station , in which MW wrote that she “hope[d] he doesn’t expect sex.” On that same day, MW also wrote : “I know it’s like he’s creepy, but not. I’m confused.” The district court overruled Goldberg’s objection and applied the enhancement

. III . The district court did not clearly err by enhancing Goldberg’s sentence under USSG § 2G1.3( b)(2)(B)

. U ndisputed evidence in the record supports the district

c ourt’s finding that Goldberg unduly influence d his minor victims to enga ge in prohibited sexual conduct. As the district court explained, Goldberg, a “ very mature adult male[,] reach[ed] out to a 15

- year - old in the first instance”; “made the first contact”; “us[ed] money to entice her into a relationship which she says at one point she’s confused about,” after she had “indicat[ed] she’s not really interested in having sex .” Goldberg thus displayed “an abuse of superior . . . influence and resources,” Panfil , 338 F.3d at 1303 (citation omitted) , that supports application of the undue

- influence enhancement. For these reasons , we affirm the sentence.

AFFIRMED. Case: 14-10313 Date Filed: 11/20/2014 Page: 5 of 5