[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-14969

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JASON GATLIN, 

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

____________________

____________________

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2 Opinion of the Court 19-14969

No. 20-14149

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

versus

JASON GATLIN, 

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:19-cr-20163-RS-1

____________________

Before JORDAN, LUCK, and LAGOA, Circuit Judges.

LAGOA, Circuit Judge:

Jason Gatlin appeals his convictions and sentences for sex 

trafficking of a minor, production of child pornography, and witness tampering. On appeal, Gatlin raises several arguments in challenging his convictions and sentences. After careful review, and 

with the benefit of oral argument, we affirm Gatlin’s convictions 

and sentences as to Counts 1 and 2 but reverse his conviction and 

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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. 

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During this time, Gatlin became E.H.’s de facto pimp. Gatlin told at least one customer that he was E.H.’s “manager.” Gatlin 

booked hotel rooms for E.H. so that she could engage in sex with 

customers. He also paid for E.H.’s food, supplied her with MDMA, 

drove her to the Florida Keys where she would prostitute herself, 

and allowed her to stay in the house that he was working on there. 

Additionally, Gatlin coached E.H. to charge more money in the 

Florida Keys than in Miami given the high presence of tourists and 

taught her sexual “tricks” so that she could continue to engage in 

prostitution. In return, Gatlin expected a cut of E.H.’s earnings.

The relationship between Gatlin and E.H. soured quickly. 

Gatlin became angry that E.H. was having sex with other men. 

Similarly, E.H. was irate to learn that Gatlin was having sex with 

other women.

Things came to a head on November 30, 2018. While the 

two were staying together in the Florida Keys, E.H. threatened to 

call the police on Gatlin. The situation became violent. As a result 

of her fight with Gatlin, E.H. suffered injuries to her nose and 

mouth. On the way back to Miami after their physical altercation, 

Gatlin threatened E.H. She became scared and asked Gatlin to pull 

over at a convenience store so that she could use the bathroom. 

Once inside, she locked herself in the bathroom and called the police. Gatlin then left her there. 

Officers from the local sheriff’s office responded to E.H.’s 

call, and after interviewing her, brought her to a hospital, where 

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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 of 18 

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U.S.C. § 1591 (“Count 1”); one count of production of child pornography, in violation of 18 U.S.C. § 2251 (“Count 2”); and one 

count of witness tampering, in violation of 18 U.S.C. § 1512(b)(3)

(“Count 3”).

Gatlin’s trial began on September 5, 2019, and lasted eight 

days. At the close of evidence, the district court instructed the jury. 

Regarding Count 1, the district court instructed the jury that the 

government was required to prove that Gatlin trafficked E.H. either:

(a) knowing or in reckless disregard of the fact that 

means of force, threats of force, or coercion will be 

used to cause the person to engage in a commercial 

sex act, or (b) in reckless disregard of the fact that the 

person has not attained the age of 18 years, or having 

had a reasonable opportunity to observe the person, 

and knowing or in reckless disregard of the fact that 

the person will be caused to engage in a commercial 

sex act. 

In other words, the district court instructed the jurors that to find 

Gatlin guilty of sex trafficking, they had to find that Gatlin either 

acted: (a) by means of force, threats of force, or coercion; or (b) in 

reckless disregard of the fact that E.H. was a minor. The district

court and the parties agreed to an interrogatory verdict form for 

Count 1. That verdict form first asked whether the jury found Gatlin guilty and, if so, whether it was by use of force or by reckless 

disregard of the fact that the victim was a minor. 

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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 Count 1,” 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 Count 1, 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 

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had obstructed justice.2 For Count 2, production of child pornography, the PSI noted that the base offense level was 32. It adjusted 

this offense level by eight points, reaching a total adjusted offense 

level of 40, reasoning as follows: (1) a two-point increase because 

E.H. was in Gatlin’s custody, care, or supervisory control; (2) a twopoint increase because the offense involved a sexual act; and (3) a 

four-point increase because the material produced portrayed sadistic or masochistic conduct or other depictions of violence. Based 

on the number of offenses and their levels, the PSI calculated that 

the total combined offense level was 42, to which it added a fivepoint increase because Gatlin qualified as a repeat offender. The

PSI thus defaulted to the maximum offense level for the relevant 

offenses, which was 43. Next, in light of Gatlin’s record, the PSI 

found that his criminal history category was IV. Based on Gatlin’s 

total offense level and criminal history category, the PSI found that, 

under the United States Sentencing Guidelines, he should be sentenced to a term of life imprisonment.

The district court sentenced Gatlin to a term of life imprisonment—a term of life as to Count 1, 260 months as to Count 2, 

and 240 months as to Count 3, all to be served concurrently. The 

district court considered a multitude of factors, including the PSI, 

Gatlin’s “extensive” criminal history, Gatlin’s mental health issues, 

2 The adjustments to the offense level of Count 1 incorporated the sentence 

for Count 3 (witness tampering). Together, they are referred to as count 

group one in the PSI. 

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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. 

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‘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) (quoting United States v. Rodriguez-Lopez, 363 F.3d 

1134, 1137 (11th Cir. 2004)); accord United States v. U.S. Gypsum Co., 

333 U.S. 364, 395 (1948). Further, we review the reasonableness of 

a sentence “under a deferential abuse-of-discretion standard.” Gall 

v. United States, 552 U.S. 38, 41 (2007). 

And finally, we review errors that were forfeited because 

they were not timely raised in the district court for plain error. See 

Greer v. United States, 141 S. Ct. 2090, 2096 (2021). “To establish eligibility for plain-error relief, a defendant must satisfy three threshold requirements. First, there must be an error. Second, the error 

must be plain. Third, the error must affect substantial rights, which 

generally means that there must be a reasonable probability that, 

but for the error, the outcome of the proceeding would have been 

different.” Id. at 2096 (internal quotation marks omitted). If a defendant establishes that these three requirements are met, we then 

may exercise our discretion to notice the forfeited error but only if 

we determine that “the error had a serious effect on ‘the fairness, 

integrity[,] or public reputation of judicial proceedings.’” Id. at

2096–97 (quoting Rosales-Mireles v. United States, 138 S. Ct. 1897, 

1904–05 (2018)); accord United States v. Coats, 8 F.4th 1228, 1240 (11th 

Cir. 2021).

III. ANALYSIS

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

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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 (Count 1)

We begin our analysis with Gatlin’s conviction for sex trafficking of a minor. A person is guilty of sex trafficking of a minor 

under 18 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 of 

18 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 of 18 years.” Id. § 1591(c).

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Reviewing the record, we conclude that the elements of sex 

trafficking of a minor are met here. First, there was substantial 

evidence presented at trial that showed Gatlin was E.H.’s pimp, 

thereby satisfying the first element. According to E.H.’s trial testimony, Gatlin rented a room for E.H. at a Motel 6 and drove her 

there knowing that she was going to prostitute herself in the room 

(which she then did); coached her on pricing and sexual techniques;

and drove her to the Florida Keys, allowed her to stay with him, 

and gave her food and drugs “[w]henever [she] asked.” At the very 

least, these facts demonstrate that Gatlin “harbor[ed], 

transport[ed], provide[d],” and “maintain[ed]” E.H. Id.

§ 1591(a)(1); see United States v. Mozie, 752 F.3d 1271, 1286 (11th Cir. 

2014) (“[Section 1591] applies to anyone who ‘harbors’ a minor 

who ‘will be caused to engage in a commercial sex act.’ B.H. testified that she stayed at Mozie’s house for five days and four nights 

while she worked as a prostitute for him. That evidence is sufficient 

to convict Mozie . . . .” (citation omitted)).

As to the second element, the evidence presented at trial 

showed that Gatlin knew that E.H. was underage. E.H. testified 

that, when she first met Gatlin, she told him she was seventeen. 

That testimony is sufficient to lead a reasonable juror to conclude 

that Gatlin knew or had reckless disregard for the fact that E.H. was 

underage.

As to the third element, the evidence showed that Gatlin 

knew that E.H. would be “cause[d] to engage in commercial sex 

acts.” See 18 U.S.C. § 1591(a). In addition to the enabling actions 

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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. 

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2017) (“[T]he commission of a sex act is not an element of § 1591.” 

(emphasis in original)). Rather, “a defendant need only put the victim in a position where a sex act could occur, regardless of whether 

a sex act eventually did occur.” Id. (emphasis in original).

Again, on this record, we conclude that there was sufficient 

evidence to support the third element of § 1591, i.e., the evidence 

was more than sufficient for a jury to find that Gatlin knew that 

E.H. was a minor and knew that she would be caused to engage in 

commercial sex acts through his conduct. At trial, E.H. testified to 

the following. Gatlin knew E.H. was seventeen years old. Gatlin 

helped E.H. place online advertisements for prostitution and told 

her to charge higher prices in the Florida Keys. Gatlin took E.H. to 

a Motel 6 and paid for her room, knowing that E.H. would have sex 

for money with customers, and E.H. gave Gatlin money from prostitution so that he could pay for extra nights at the Motel 6. Gatlin 

would not stay at the hotels he rented for E.H., but, on at least one 

occasion, kept a key to her room. Gatlin bought E.H. food, gave 

her money and drugs while she stayed at various motels and expected E.H. to give him some of the money she earned from prostitution. E.H. also testified that various statements she made to the 

police were truthful.

We thus conclude that the evidence presented at trial was 

sufficient for a reasonable jury to find that Gatlin knew E.H. was a 

minor and that Gatlin knew that E.H. would be caused to engage 

in commercial sex acts through his conduct. Accordingly, we affirm Gatlin’s conviction under § 1591 as to Count 1. 

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2. Production of Child Pornography (Count 2)

We now turn to Gatlin’s conviction for production of child 

pornography under 18 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—“forthe 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. 

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United States v. Miller, 819 F.3d 1314, 1316 (11th Cir. 2016). Moreover, “because specific intent . . . can be difficult to prove[,] . . . often 

circumstantial evidence must be introduced to allow the jury to infer intent.” See United States v. Foshee, 578 F.2d 629, 632 (5th Cir. 

1978).4

Here, the evidence shows that Gatlin (1) intentionally had 

sex with a minor and (2) intentionally made a recording of that act

by using his camera phone. The jury first could reasonably infer

that Gatlin, during sexual intercourse with E.H., reached for his 

camera phone, unlocked the phone, and accessed the phone’s camera. Additionally, the jury could reasonably infer, based on the angle of the “live photo” in question, that Gatlin had to hold his camera phone in front of him using at least one of his hands while he 

was having sexual intercourse with E.H. Moreover, the short video 

contained in the “live photo” makes evident that Gatlin and E.H. 

“posed” for the photo by remaining still during sexual intercourse. 

In other words, for Gatlin to make the recording of the sexual act, 

he had to engage in a sexual act with E.H. and intentionally pause

in the middle of that act to take the “live photo.” A jury could reasonably infer from that pause that, for at least some fraction of 

time, Gatlin was engaged in sexual conduct with E.H. partly for the 

purpose of recording it. Cf. Lebowitz, 676 F.3d at 1013 (“This is not 

a case of a security camera mechanically picking up a random act.” 

4 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), 

this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

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(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] violated 18 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 (Count 3)

We next address Gatlin’s conviction for witness tampering. 

As relevant to Gatlin’s case, a person violates 18 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) (interpreting 

18 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 

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possibility standard to § 1512(b)(3)). Thus, the intent element presents a two-step framework. First, we must determine whether the 

defendant had the intent to mislead law enforcement in general. 

Fowler, 563 U.S. at 673. If he did, we then must ask whether there 

was a reasonable likelihood that a relevant communication would 

have been made to a federal officer. Id. at 677. The intent element 

is satisfied only if both prongs are met. And the government “must 

show that the likelihood of communication to a federal officer was 

more than remote, outlandish, or simply hypothetical.” Id. at 678. 

Following Fowler, our sister circuits that have considered this 

issue have diverged in their approaches to the reasonable likelihood 

standard. See United States v. Johnson, 874 F.3d 1078, 1082 (9th Cir. 

2017). In United States v. Tyler, 732 F.3d 241 (3d Cir. 2013), the Third 

Circuit held that, to establish a “reasonable likelihood,” “there must 

be evidence—not merely argument”—“of the witness’s cooperation with law enforcement.” Id. at 252 (quoting United States v. 

Lopez, 372 F.3d 86, 92 (2d Cir. 2004)). The court explained that “‘the 

government need not prove that a federal investigation was in progress at the time the defendant committed [a] witness-tampering’ 

offense” in § 1512. Id. (alteration in original) (quoting United States 

v. Ramos-Cruz, 667 F.3d 487, 498 (4th Cir. 2012)). The Third Circuit 

has also held that the reasonable likelihood standard is a “relatively 

low bar,” as the government, under Fowler, “need only show that 

‘the likelihood of communication to a federal officer was more 

than remote, outlandish, or simply hypothetical.’” Bruce v. Warden 

Lewisburg USP, 868 F.3d 170, 185 (3d Cir. 2017) (first quoting United 

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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 

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reach federal officers, see Fowler, 563 U.S. at 673. Thus, viewing the 

evidence in the light most favorable to the government, no rational 

trier of fact could have found the federal nexus element of the 

crime to be met.

As an initial matter, we agree that the record evidence 

demonstrates Gatlin’s intent to have E.H. lie by recanting her previous statements to state law enforcement. For example, E.H. testified that Gatlin’s mother contacted her and told her to “recant 

[her] statements to say that everything that [she] had previously 

told law enforcement was untrue.” E.H. also testified as to Gatlin’s 

attempts to persuade her to hinder the investigation. Indeed, before Gatlin was arrested, he dropped off food and money to E.H. 

and told her to “tell them it wasn’t true.” A jury could reasonably 

infer that “them” was referring to law enforcement. And jail calls 

between Gatlin and E.H., as well as between Gatlin and Gatlin’s 

mother, further demonstrate this intent. 

But, to prove a violation of § 1512(b), the government must 

also show that there was a reasonable likelihood that a relevant 

communication would have been made to a federal officer. Fowler, 

563 U.S. at 677. And here, while the issue is admittedly a close call, 

we conclude that the government’s evidence does not establish 

more than a “remote” or “simply hypothetical” possibility that 

E.H.’s recantation statements could have reached a federal officer. 

See id. at 678. E.H.’s statements were given to the state public defender’s office and were intended by Gatlin to influence and mislead the state prosecution—specifically, the state prosecutor, who is 

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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”). 

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The government, however, argues that the evidence established that “the false testimony was not only likely to be, but was, 

conveyed to federal law enforcement.” In support of its argument, 

the government notes that the FBI actually received her recanted 

testimony during its investigation. We note that the Ninth Circuit 

rejected a nearly identical “actual communication” argument in 

Johnson. See 874 F.3d at 1081–82. In that case, the government argued that Fowler was inapplicable because it involved a “hypothetical communication” as opposed to an “actual communication” 

that made its way to the federal officers in that case. See id. at 1081. 

The Ninth Circuit, in rejecting the government’s argument, found 

the position to be “a limitation that swallows the rule,” as “every 

federally prosecuted case must necessarily involve an actual communication to federal officers at some point.” Id. at 1082. Thus, 

the court reasoned, an actual communication rendering Fowler inapposite would make Fowler “a nullity.” Id. We agree with the 

Ninth Circuit’s reasoning in Johnson. Indeed, if we were to conclude that an actual communication to a federal officer alone satisfied the federal nexus requirement of § 1512(b), the reasonable likelihood standard in Fowler would be sapped of meaning. See Johnson, 

874 F.3d at 1081–82. Therefore, the fact that the FBI actually received E.H.’s statements does not establish that it was reasonably 

likely that the communication would reach a federal officer under 

Fowler.

The government also points to evidence showing the FBI began investigating Gatlin for sex trafficking of E.H. the same night 

she was recovered. It is true that the Supreme Court explained in 

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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 

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federal investigation into Gatlin’s sex trafficking of E.H.—without 

more—does not show that the communication to a federal officer 

was more than remote or simply hypothetical. See id. at 673, 678. 

For example, the government did not present evidence showing 

that, at the time of E.H.’s recantation statements, Gatlin knew federal officers were investigating him nor had any knowledge regarding the federal nature of the offenses for which he was charged. 

Rather, the evidence shows that Gatlin was arrested by state law 

enforcement, that he thought he was going to be charged with battery under state law and that he intended E.H. to lie to the state 

public defender’s office to influence and mislead the state prosecution. And while the FBI did begin investigating Gatlin on the night 

E.H. was recovered, the government presented limited evidence at 

trial regarding the specific interactions of state and federal officials—either on sex trafficking cases generally or on this case specifically.5 

5 It is true that the government presented testimony from one local law enforcement officer investigating the case who stated that he was on a joint sextrafficking task force that included FBI agents and that the task forcer officers 

“always reach out to the FBI” to see if the FBI wanted to get involved in the 

case. And an FBI agent involved in the case generally stated that it was common for him to work with state law enforcement in human trafficking investigations. But under the specific facts of this case, relying on this limited evidence regarding the specific interactions of state and federal officials on sex 

trafficking offenses generally and this specific case alone to sustain Gatlin’s 

§ 1512(b) conviction in our view would veer too close to the possibility standard that the Supreme Court in Fowler disavowed. See 563 U.S. at 676–77.

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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 Deliberating 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 Count 1 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 

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rights, including those to a fair trial and against double jeopardy. 

We begin with the Powell argument.

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). 

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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. 

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The Tenth Circuit ultimately rejected the defendant’s Powell

argument. Initially, then-Judge Gorsuch distinguished Powell on its 

face, saying that “nothing in Powell . . . speaks to the propriety of 

ordering further deliberations in the face of inconsistent verdicts 

against the same defendant on the same count”; rather, it “simply 

hold[s] the district court was allowed to enter a guilty verdict on one 

count despite a logically inconsistent verdict on another.” Id. at 

1194–95 (emphasis in original). Then-Judge Gorsuch stated:

Even accepting for argument’s sake Mr. Shippley’s 

premise that Powell . . . implicitly require[s] (rather 

than permit[s], as [it] hold[s]) a district court to accept 

a verdict logically inconsistent as between counts or 

defendants, that still does not speak to our case. In 

our case, it wasn’t just logically incongruous to enter 

the jury’s verdict, it was metaphysically impossible. 

Powell . . . involved logical inconsistencies between 

counts . . . . However illogical, the verdicts . . . could 

be given full effect. This case, by contrast, involves an 

inconsistency on the same count with the same defendant—an inconsistency that simply could not have 

been given full effect. Something had to give in our 

case that didn’t have to give in [Powell]. To enter an 

acquittal, the district court would have needed to disregard the fact that the jury expressly found Mr. Shippley guilty. To enter a guilty verdict, the court would 

have needed to overlook the special verdict findings 

that Mr. Shippley did not conspire to distribute any of 

the drugs at issue in the case. And nothing in Powell

. . . speaks either explicitly or implicitly about what a 

court’s to do in these circumstances, let alone 

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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 Count 1 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 

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2. The District Court’s Decision Was Not Plainly Erroneous Under 

the Fifth and Sixth Amendments.

Having determined that the district court’s decision did not 

run afoul of Powell, we now address whether the decision violated 

Gatlin’s rights under the Due Process and Double Jeopardy Clauses 

of the Fifth Amendment, and his right to a fair trial under the Sixth 

Amendment, by instructing the jury to continue deliberations after 

it returned the unanimous, but inconsistent, verdict of “guilty.” 

Gatlin asserts that “the jury returned a general verdict of guilt but 

unanimously found . . . that [Gatlin] did not commit an essential 

element of the offense,” and that, as such, the district court should 

have entered a verdict of not guilty as to Count 1. Gatlin argues

that the district court’s failure to do so violated the Fifth and Sixth 

Amendments. Gatlin also argues that the district court’s directions

to the jury were “coercive” because the district court told the jury 

that the verdict was “inconsistent,” also told the jury that the court 

“had no opinion or view as to the correct verdict,” and instructed 

the jury three times what had to be done to find Gatlin guilty, but 

only twice as to what had to be done to find Gatlin not guilty. 

Generally, we review constitutional errors de novo. See 

Brown, 364 F.3d at 1268. But Gatlin did not raise any constitutional 

challenges below as to this issue. Accordingly, the district court did 

when such an internally inconsistent verdict is accepted (and jeopardy attaches) the defendant is entitled to a judgment of acquittal. See, e.g., United 

States v. Pierce, 940 F.3d 817 (2d Cir. 2019); United States v. Randolph, 794 F.3d 

602 (6th Cir. 2015).

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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). 

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We find no plain error relating to double jeopardy because 

the verdict was not final. The district court stated that it had not

“accepted the verdict.” Defense counsel at trial acknowledged as 

much, stating that “[t]he jury returned an inconsistent verdict as to 

Count 1” and that the “verdict was not accepted by the Court due 

to the inconsistencies in Count 1.” Since the inconsistent verdict 

was never final, Gatlin’s initial jeopardy never terminated, and he 

therefore was not subjected to double jeopardy. See Blueford v. Arkansas, 566 U.S. 599, 608 (2012) (explaining that “finality” of the 

jury’s verdict is “necessary to amount to an acquittal” for the purposes of terminating jeopardy). 

Neither do we find that the district court plainly erred by 

giving a coercive instruction to the jury. To assess whether an instruction to the jury “was coercive, we consider the language of 

the charge and the totality of the circumstances under which it was 

delivered.” United States v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 

2008) (discussing whether an Allen charge was coercive). A charge 

to the jury to continue deliberating is impermissibly coercive if it 

“appears to give a jury no choice but to return a verdict.” United 

States v. Jones, 504 F.3d 1218, 1219 (11th Cir. 2007) (citing Jenkins v. 

United States, 380 U.S. 445, 446 (1965)).

Here, the district court instructed the jury as follows:

It has been brought to my attention that Count 1 is 

inconsistent. If you come back guilty as to Count 1, 

you have to find either that (a) or (b) occurred, unanimously. If you find that (a) and (b) did not occur, 

then the verdict would be not guilty. So what I’m 

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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 of 18 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.

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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 than 18 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

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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 

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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 

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19-14969 Opinion of the Court 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 

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38 Opinion of the Court 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 of 

18 U.S.C. § 1591. See id. § 4B1.5 cmt. n.4(A) (explaining that sexual 

conduct includes “any offense described in 18 U.S.C. 

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19-14969 Opinion of the Court 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 the 18 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—

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40 Opinion of the Court 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.

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19-14969 Opinion of the Court 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 

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42 Opinion of the Court 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 to 18 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 

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19-14969 Opinion of the Court 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.8 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 the 

8Gatlin 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.

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44 Opinion of the Court 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 is 10 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 

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19-14969 Opinion of the Court 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 November 30, 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 for 30 minutes, 

and [$]100 for a[n] hour” in Miami, and “[$]150 for 15 minutes, 

[$]200 for 30 minutes, and [$]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 Counts 1 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.

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19-14969 [JORDAN, J., Concurring in Part, Dissenting in Part] 1 

JORDAN, Circuit Judge, concurring in part and dissenting in part.

I join Judge Lagoa’s opinion for the court with the exception 

of Part III.A.2, as to which I respectfully dissent.

* * * * *

As to Part III.B, which I join, I emphasize that due to the 

district court’s non-acceptance of the inconsistent jury verdict on 

Count 1 we are not faced with a situation where a final jury verdict 

contains answers to special interrogatories that preclude a general 

finding of guilt. Had the district court accepted the jury’s inconsistent verdict, I do not think Mr. Gatlin’s conviction on Count 1 

could stand. See, e.g., United States v. Pierce, 940 F.3d 817, 821–23 (2d 

Cir. 2019) (“[T]he appropriate remedy for the inconsistency [within 

a count in the jury verdict] (when the jury was not given the opportunity to reconsider) [i]s to set aside the guilty verdict[.]”); 

United States v. Randolph, 794 F.3d 602, 609 (6th Cir. 2015) (“Here, 

the jury’s special verdict found that the drugs ‘involved in’ the conspiracy were ‘none.’ This unanimous finding negates an essential 

element of the charged drug conspiracy and is only susceptible to 

one interpretation: the government failed to prove Randolph guilty 

of the charged drug conspiracy beyond a reasonable doubt.”);

United States v. Gonzalez, 841 F.3d 339, 348 (5th Cir. 2016) (“Courts 

consistently vacate convictions when the answers to special interrogatories undermine a finding of guilt the jury made on the general question.”); United States v. Mitchell, 476 F.3d 539, 544 (8th Cir. 

2007) (“[D]ouble jeopardy is triggered when either . . . a jury acquits 

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2 [JORDAN, J., Concurring in Part, Dissenting in Part] 19-14969

a defendant or . . . makes a factual finding that would be fatal to the 

government’s case.”). 

* * * * *

 My disagreement concerns Part III.A.2, which upholds Mr. 

Gatlin’s conviction for production of child pornography under 18 

U.S.C. § 2251(a). Though the issue is admittedly close, I do not believe the evidence was sufficient to support a guilty verdict on this 

charge.

The conviction, as noted in the court’s opinion, is based on 

a single “live” photo taken by Mr. Gatlin during intercourse with 

E.H. Having reviewed the single live photo, I don’t think that the 

evidence is sufficient to convict Mr. Gatlin of production of child 

pornography. In my view, Mr. Gatlin correctly asserts that the evidence showed only that he took a photo during sexual intercourse 

with E.H., not that he had sexual intercourse with her for the purpose of producing child pornography. 

The relevant language of § 2251(a) makes it a felony for 

“[a]ny person” to “induce[ ], entice[ ], or coerce[ ] 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.” Our precedent establishes that taking or producing explicit photos need not 

be the “defendant’s sole or primary purpose,” and it is “enough to 

show that it was ‘a purpose’ for doing so.” United States v. Miller, 

819 F.3d 1314, 1316 (11th Cir. 2016). But the statute’s language specifies that “a defendant must engage in the sexual activity with the 

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19-14969 [JORDAN, J., Concurring in Part, Dissenting in Part] 3

specific intent to produce a visual depiction; it is not sufficient 

simply to prove that the defendant purposefully took a picture.” 

United States v. Palomino-Coronado, 805 F.3d 127, 131 (4th Cir. 2015). 

I agree that there was enough evidence to establish that Mr. Gatlin 

took the photo, but that photo does not show that Mr. Gatlin and 

E.H. “posed” for the photo by “remaining still during sexual intercourse.” Maj. Op. at 17–18. Not all sexual activity, after all, is comprised of uninterrupted and continuous physical motion. 

The court reasons that a jury could reasonably infer from 

the pause in the middle of intercourse that, for at least some fraction of the time, Mr. Gatlin was engaged in sexual conduct with 

E.H. partly for the purpose of recording it. I’m not so sure, and my 

concern is that we are coming close to making § 2251(a) a strict 

liability statute. Generally speaking, taking a photo requires the 

person with the camera to pause for a moment, focus on the subject, and press a button. So, the court may be saying that if the 

defendant takes a photo during sexual intercourse with a minor, 

that act will always provide enough evidence to convict the defendant of production of child pornography under § 2251(a). 

The conduct here is different (and less substantial) than the 

conduct at issue in United States v. Lebowitz, 676 F.3d 1000, 1013 

(11th Cir. 2012), where the defendant and the minor victim discussed videotaping a sexual encounter prior to the recording, the 

defendant brought a camera and tripod through the victim’s bedroom window and set up the equipment, and the sexual encounter 

took place in that bedroom only because there was no room for the 

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4 [JORDAN, J., Concurring in Part, Dissenting in Part] 19-14969

equipment in the defendant’s car. I do not maintain that the evidence in Lebowitz is the only evidence that will suffice for a production of child pornography conviction, but I do think that this 

case—with a single live photo—is markedly different. The facts 

here seem much closer to those in Palomino-Colorado, 805 F.3d at 

131–33, which reversed a § 2251(a) conviction based on a single cellphone photograph that was subsequently deleted.

As the Second Circuit has explained, under § 2251(a) the 

“[s]equence” of events “is critical. . . . [A defendant] c[an] only persuade, induce, or entice [a minor] to take [p]hotos . . . if his persuasion, inducement, or enticement came before [he] took them.” 

United States v. Broxmeyer, 616 F.3d 120, 125 (2d Cir. 2010) (emphasis 

in original). Here, there is no testimony from E.H. (or any other 

evidence) about how the photograph came to be taken, or when 

during the encounter it was taken. Nor is there evidence about 

whether she and Mr. Gatlin had discussed photographing their encounter at any point before the photo was taken, whether he gave 

E.H. any instructions before or during their encounter to facilitate 

the taking of the photo, see United States v. Torres, 894 F.3d 305, 314–

15 (D.C. Cir. 2018), or whether he had ever recorded any of their 

other sexual encounters. See also United States v. Lee, 603 F.3d 904, 

918 (11th Cir. 2010) (holding that the defendant’s description of 

“how many photographs he wanted of each girl” and “how he 

wanted the girls to pose” contributed to the reasonableness of the 

jury’s finding that he intended to use the minors for the production 

of child pornography); United States v. Morales-de Jesus, 372 F.3d 6, 

21–22 (1st Cir. 2004) (evidence was sufficient where the defendant 

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19-14969 [JORDAN, J., Concurring in Part, Dissenting 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 

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6 [JORDAN, J., Concurring in Part, Dissenting in Part] 19-14969

be probative of intent if the prosecution makes a significant connection, it cannot be the only evidence . . . . That would impermissibly reduce the statute to a strict liability offense.”); Torres, 894 F.3d 

at 321 (Williams, J., concurring in part) (“On the government’s 

reading, any picture-snapping during an assembly of two or more 

persons (including at least one minor) that displays someone’s pubic region . . . gives the anterior ‘exhibition’ the object of producing 

child pornography merely because of what is in the image.”); Palomino-Colorado, 805 F.3d at 133 (“[T]he government appears to conflate the voluntary act of taking the picture with the specific intent 

required under the statute.”). Cf. United States v. Crandon, 173 F.3d 

122, 129 (3d Cir. 1999) (addressing U.S.S.G. § 2G2.2(c)(1), which 

contains the phrase “for the purpose of producing a visual depiction of such conduct”: “It simply is not enough to say ‘the photo 

speaks for itself and for the defendant, and that is the end of the 

matter,’ as the government’s position would dictate, when the 

[guideline] makes specific reference to the defendant’s purpose in 

taking the photograph.”) (emphasis in original). 

* * * * *

I would vacate Mr. Gatlin’s § 2251(a) conviction and sentence due to insufficient evidence.

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19-14969 [LUCK, J., Concurring in Part, Dissenting in Part] 1

LUCK, Circuit Judge, concurring in part and dissenting in part:

I join all of the majority opinion save for the one section—

III.A.3.—vacating Jason Gatlin’s conviction for witness tampering 

under 18 U.S.C. section 1512(b)(3). And even as to that one section, 

there’s a lot in the majority opinion I agree with.

For example, I agree that, to convict Gatlin of witness tampering under section 1512(b)(3), the government had to prove that 

he (1) knowingly used intimidation, threatened, or corruptly persuaded E.H., or engaged in misleading conduct towards E.H., with 

the intent to (2) hinder, delay, or prevent the communication of information related to the commission or possible commission of a 

federal offense (3) to a law enforcement officer or judge of the 

United States. I agree that, to prove intent, Fowler v. United States

required the government to show two things: first, that Gatlin intended to hinder, delay, or prevent E.H. from communicating with 

law enforcement in general; and, second, that there was a reasonable likelihood E.H.’s communication would have been made to a 

federal officer. See 563 U.S. 668, 670 (2011). 

And I agree the government offered sufficient evidence supporting Fowler’s first prong. Before he was arrested, Gatlin gave 

E.H. money and food—telling her it was so she would recant and 

lie to law enforcement about being trafficked. Then after he was 

arrested, Gatlin told E.H.—while she was living in his mother’s 

house and had “nowhere” else to go—to change her statement in a 

sworn affidavit and “tell em” not to call her anymore, that she was 

not coming to court, and that she was leaving town and “not 

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2 [LUCK, J., Concurring in Part, Dissenting in Part] 19-14969

coming back.” Gatlin also told his mother to pay E.H. a thousand 

dollars to recant her statements. Gatlin’s mother then drove E.H. 

to Gatlin’s attorney’s office to change her statement and Gatlin’s 

mother paid E.H. as E.H. was leaving town. 

Where I part ways with the majority opinion is on Fowler’s 

second prong—whether it was reasonably likely for E.H.’s communication to be made to a federal officer. While conceding it’s a 

“close call,” the majority opinion concludes the government’s evidence was insufficient because it “did not present any evidence indicating that Gatlin knew federal officers were investigating him 

nor any knowledge regarding the federal nature of the offense 

when he sought E.H. to recant her statement.” And, reinforcing 

the point, the majority opinion repeats that “the government did 

not present evidence showing that, at the time of E.H.’s recantation statements, Gatlin knew federal officers were investigating 

him nor had any knowledge regarding the federal nature of the offense for which he was charged.” I disagree with the majority’s 

conclusion for two reasons.

First, to the extent the majority opinion can be read as requiring the government to prove Gatlin knew federal officers were 

investigating him or the federal nature of the offense, this misses 

the mark. Fowler’s second intent prong requires only a reasonable 

likelihood that a relevant communication would have been made 

to a federal officer. See id. Knowledge about the federal investigation and the federal nature of the offense may be strong evidence 

that it was reasonably likely for a communication to be made to a 

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19-14969 [LUCK, J., Concurring in Part, Dissenting in Part] 3

federal officer. But that knowledge isn’t a necessary element of the 

witness-tampering statute. Cf. id. at 677–78 (explaining that “an intent to prevent communication with law enforcement officers generally . . . includes an intent to prevent communications with federal

law enforcement officers” if the reasonable likelihood standard is 

satisfied). 

Second, applying the proper standard, the government’s evidence was sufficient to show a reasonable likelihood that E.H.’s 

communications would have been made to federal officers. Federal 

Bureau of Investigation Special Agent Alex Loff, who works human 

trafficking cases in the Miami-Dade area “full-time,” testified that 

the FBI was involved in E.H.’s case as early as “early December”—

days after E.H. called the police for help from the gas station. It 

was “[i]ncredibly common,” Special Agent Loff said, for the FBI to 

work with state law enforcement officers on human trafficking investigations and it was “routine” for the FBI to respond when a victim is recovered by state officers. And after he confirmed learning 

about E.H.’s recantation, Special Agent Loff explained that, although it might occur in piecemeal fashion, it was typical for federal 

investigators to receive all the information from a state-related investigation. 

Miami-Dade Police Department Detective Kurtis Lueck, the 

local law enforcement officer assigned to E.H.’s case, also testified 

he was part of a sex-trafficking task force that included Special 

Agent Loff’s office. Detective Lueck explained that, after a sex-trafficking investigation is opened, the local task force officers “always 

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reach out to the FBI to see if they want to go out with us and get 

involved in the case.”

Given the evidence that the FBI joined the investigation days 

after E.H.’s call from the gas station, it was incredibly common for 

the FBI to be involved in trafficking investigations in the MiamiDade area, the area’s local officers were in a joint trafficking task 

force with federal officers, and the local officers always reached out 

to the FBI about trafficking cases and typically shared their information, it was more than a remote, outlandish, or hypothetical possibility that E.H.’s communications would have been made to federal officers. Cf. United States v. Ramos-Cruz, 667 F.3d 487, 498–99 

(4th Cir. 2012) (“When, as occurred here, federal law enforcement 

authorities become involved in an investigation approximately a 

month after the relevant murder, federal authorities are specifically 

focusing on the group in question, and local authorities investigating the underlying crime are actively cooperating with federal law 

enforcement officers, the reasonable likelihood standard is met.”). 

Federal officers were part of this case from the get-go. 

The majority opinion compares this case to United States v. 

Chafin, 808 F.3d 1263 (11th Cir. 2015). There, “the government introduced no evidence showing that [the defendant]’s statements to 

the [state agent] investigating the alleged misuse of the jail commissary account were reasonably likely to be communicated to federal authorities.” Id. at 1274 (emphasis added). The only evidence, 

we said, pointed in the “opposite” direction: the state agent “told 

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[the defendant] that the local district attorney had initiated the investigation.” Id. 

But here, unlike Chafin, the government presented evidence 

showing that E.H.’s statements were reasonably likely to be communicated to federal authorities. Unlike Chafin, E.H.’s case was investigated from the start not only by local and state officers, but by 

the FBI. Unlike Chafin, the local officers were part of the federal 

task force investigating sex-trafficking crimes. And unlike Chafin, 

the evidence showed that the local officers always reached out to 

the FBI about sex-trafficking investigations, and it was incredibly 

common for the FBI and local officers to work together on cases 

like E.H.’s. The stark difference in evidence between this case and 

Chafin shows why the evidence was insufficient there but sufficient 

here.

Because I believe sufficient evidence showed a reasonable 

likelihood of E.H.’s communications being made to federal officers, I respectfully dissent from the one section of the majority opinion vacating Gatlin’s witness-tampering conviction.

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