[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-13383

Non-Argument Calendar

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D.C. Docket No. 1:12-cr-00285-WSD-AJB-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

 versus

JOSHUA THOMAS HILL, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(April 17, 2015)

Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM: 

Joshua Thomas Hill (“Hill”) appeals his 192-month sentence, imposed after 

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he pled guilty to conspiracy to engage in sex trafficking of minors in violation of 

18 U.S.C. § 1594(c). On appeal, Hill claims the district court erred by applying: 

(1) a two-level enhancement for using a computer to solicit a person to engage in 

unlawful sexual activity with a minor pursuant to U.S.S.G. § 2G1.3(b)(3)(B); and 

(2) another two-level enhancement for his supervisory role in the offense pursuant 

to U.S.S.G. § 3B1.1(c). Upon review of the record and the parties’ briefs, we 

affirm.

I.

On February 19, 2012, Hill and his accomplices, Fabian Terran Murray 

(“Murray”) and Clinton Saintvil (“Saintvil”), picked up two 14-year-old girls from 

a park with the intent of using them as prostitutes. The group traveled to a local 

hotel where Hill rented a room in his name and had sex with the girls. Hill paid 

Saintvil for picking up the girls and later asked Saintvil for his wife, Nicole 

Saintvil (“Mrs. Saintvil”), to post classified ads of the two on the internet. To that 

end, Hill took nude photographs of the girls on his phone and sent the pictures to 

Mrs. Saintvil; however, she informed Hill that the nude photographs could not be 

used online. Hill then photographed the girls in undergarments and sent the 

pictures to Mrs. Saintvil, who then used them to place online ads. 

Hill offered the girls to clients for sexual acts, setting the prices charged and

taking the illicit proceeds. Hill used this money to pay Saintvil for driving the 

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women to meet a client and to reimburse Mrs. Saintvil for posting the online 

advertisements. 

During the same time period, Hill also enlisted Saintvil’s assistance to take a 

third young woman to various locations where she engaged in prostitution. As 

with the other two minors, Hill used internet ads to obtain clients for her.

Hill was indicted in federal court along with Murray and Saintvil for 

conspiracy to commit child sex trafficking and substantive counts of child sex 

trafficking in violation of 18 U.S.C. §§ 1594(c) and 1591(a)(1).1

 After Hill pled 

guilty to the conspiracy charge, the United States Probation Office recommended, 

among other enhancements, a two-level upward adjustment for Hill’s leadership 

role in the offense under § 3B1.1(c). At sentencing, the Government urged the 

district court to apply an additional two-level enhancement for Hill’s use of a 

computer to solicit individuals to engage in prohibited sexual conduct with minors 

under § 2G1.3(b)(3)(B). After considering the parties’ arguments and the factors 

listed in 18 U.S.C. § 3553(a), the court imposed a 192-month sentence, applying 

both enhancements over Hill’s objections. Hill filed a timely notice of appeal.

II.

As noted above, Hill first challenges the district court’s application of the 

computer-use enhancement in calculating his sentence. If a district court 

 

1 Although irrelevant to our analysis, we note that the indictment also charged Hill, 

individually, as a convicted felon in possession of a firearm.

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improperly calculates the appropriate sentencing guidelines range, the court 

commits procedural error. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 

597, 169 L.Ed.2d 445 (2007). This Court reviews the district court’s interpretation 

and application of the guidelines to factual findings de novo. United States v. 

Dougherty, 754 F.3d 1353, 1358 (11th Cir. 2014). The party challenging the 

sentence has the burden of showing the sentence to be procedurally unreasonable. 

See United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010).

In pertinent part, the sentencing guidelines provide for a two-level 

enhancement if the defendant used a computer 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). In turn, application note 4 

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.

U.S.S.G. § 2G1.3, cmt. n. 4. The application note is authoritative unless we 

determine that it “is inconsistent with, or a plainly erroneous reading of, that 

guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 

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L.Ed.2d 598 (1993). 

Hill contends that the application note is consistent with the guideline, and

therefore, the district court erred in applying the enhancement because he did not 

use a computer to communicate with the minors or a person who exercises control 

over the minors. We have not issued an opinion that squarely addresses whether 

this application note authoritatively informs § 2G1.3(b)(3)(B) or is a plainly 

erroneous reading of that guideline.

2 Following the Fifth Circuit, a number of our 

sister circuits have concluded that the application note is patently inconsistent with 

the guideline in light of the guideline’s express terms and drafting history. United 

States v. Cramer, 777 F.3d 597, 604 (2d Cir. 2015); United States v. McMillian, 

777 F.3d 444, 450 (7th Cir. 2015)3; United States v. Pringler, 765 F.3d 445, 454-56 

(5th Cir. 2014), cert. denied, 135 S.Ct. 1000 (2015). The Ninth Circuit, in contrast, 

declined to take a stance on the matter, leaving its district courts to determine the 

appropriate application of the guideline. United States v. Jackson, 697 F.3d 1141, 

1146 (9th Cir. 2012). 

 

2 In United States v. Madkins, 390 F. App’x 849 (11th Cir. 2010), we acknowledged in 

dicta that “a persuasive case has been made that the commentary is at odds with the plain 

language of this enhancement[;]” however, we ultimately decided the case on narrower grounds. 

Id. at 852.

3 The Seventh Circuit previously reversed a district court’s application of the enhancement 

because the Government conceded that it was inapplicable. United States v. Patterson, 576 F.3d 

431, 443 (7th Cir. 2009). Our sister circuit recently issued an opinion rejecting the 

Government’s erroneous concession and adopting the Fifth Circuit’s analysis. McMillian, 765 

F.3d at 450.

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Today, we adopt the Fifth Circuit’s well-reasoned analysis. See Pringler, 

765 F.3d at 451-56. As in Pringler, Hill used a computer to advertise the sexual 

services of minors. Hill used his cellphone (itself a kind of computer)4 to send 

photographs of the minor girls for Mrs. Saintvil to use in online ads offering minor 

girls for sex. This conduct clearly fits within the plain language of U.S.S.G. §

2G1.3(b)(3)(B)—i.e., use of a computer to “solicit a person to engage in prohibited 

sexual conduct with a minor.” Id. at 454. Further, it appears the application note 

was a drafting error. As the Fifth Circuit explained:

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 Fed.Appx. 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:

 

4 Hill does not argue that the cellphone with which Hill sent photographs to Mrs. Saintvil is 

not a computer. Any such argument is thus abandoned. See also United States v. Kramer, 631 

F.3d 900, 902-03 (8th Cir. 2011) (defining a cell phone as a computer for purposes of the 

guidelines pursuant to 18 U.S.C. § 1030(e)(1)); U.S.S.G. § 2G1.3, cmt. n.1 (defining “computer” 

as having the meaning provided in 18 U.S.C. § 1030(e)(1)).

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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, or 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. Id. at page 33. The Commission thereby amended the 

Guidelines by moving the previous language and commentary of §

2G1.1 involving minors to a new section § 2G1.3 at the end of subpart 

1. Id. at 34. Thus came into being the new troublesome language of 

application note 4. The new application note mirrors the language of 

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.

Id. at 454-55 (footnote omitted).

Because the application note is inconsistent with the plain language of 

U.S.S.G. § 2G1.3(b)(3)(B), the plain language of the guideline controls. Stinson, 

508 U.S. at 38, 113 S.Ct. at 1915. Here, Hill’s actions fall squarely within the 

language of the enhancement; he used his cellphone to place online ads offering

young girls for prohibited purposes. Thus, the district court did not err in 

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increasing his offense level.

III.

Hill also asserts that the district court erred by enhancing his base offense 

level for his role as an organizer, leader, manager, or supervisor under U.S.S.G. §

3B1.1(c). A district court may commit procedural error by selecting a sentence 

based on clearly erroneous facts. Gall, 552 U.S. at 51, 128 S.Ct. at 597. The 

district court’s determination of the defendant’s role in the criminal offense is a 

finding of fact we review for clear error. United States v. Rodriguez De Varon, 

175 F.3d 930, 937 (11th Cir. 1999) (en banc). A factual finding is clearly 

erroneous when, although there is evidence to support it, we are left with the 

definite and firm conviction, after review of the entire evidence, that a mistake has 

been made. United States v. Barrington, 648 F.3d 1178, 1195 (11th Cir. 2011).

The role enhancement under § 3B1.1(c) provides for a two-level increase 

where “the defendant was an organizer, leader, manager, or supervisor” in a 

criminal activity involving fewer than five people. U.S.S.G. § 3B1.1(c). 

Application note 4 lists a number of factors for the district court to consider in 

determining the defendant’s role in the offense, including the following:

[T]he exercise of decision making authority, the nature of 

participation in the commission of the offense, the recruitment of 

accomplices, the claimed right to a larger share of the fruits of the 

crime, the degree of participation in planning or organizing the 

offense, the nature and scope of the illegal activity, and the degree of 

control and authority exercised over others.

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Id. § 3B1.1(c), cmt. n.4. An individual has a supervisory or managerial role where, 

for example, he recruits others to make his criminal scheme more effective, sets the 

prices to be paid for the illegal services, and pays his co-conspirators while 

keeping a larger portion of the profits for himself. United States v. Njau, 386 F.3d 

1039, 1041 (11th Cir. 2004).

The district court’s finding that Hill exercised a supervisory role in the 

criminal scheme was not clearly erroneous. See Njau, 386 F.3d at 1041. Hill 

actively recruited Saintvil and his wife to aid him in his criminal scheme, paying 

them for the services they rendered. Hill arranged transportation for the young 

girls to meet clients, set the prices they were to charge, and kept the majority of the 

illegal gains for himself. He also took the lewd photographs Mrs. Saintvil posted 

online at Hill’s direction. Based on these facts, the district court appropriately

added two levels pursuant to § 3B1.1(c). 

AFFIRMED.

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