2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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### NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 09

- 1057

__________ UNITED STATES OF AMERICA

v. KORY BARHAM , a/k/a Cutty Blue , a/k/a Cuttlas Y. Blue Kory Barham , Appellant

__________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C . Criminal No. 1

- 05

- cr - 00443

- 010 ) District Judge: The Honorable Yvette Kane

__________ Submitted Under Third Circuit LAR 34.1(a) April 25, 2011 BEFORE: BARRY, HARDIMAN, and NYGAARD, Circuit Judges

. (Filed : June 29, 2011 )

__________ OPINION OF THE COURT

__________ NYGAARD, Circuit Judge

. Kory Barham pleaded guilty to conspiracy to transport individuals for purposes of prostitution, coerc ing and entic ing th e m to travel to engage in prostitution , and interstate

### 2 travel with intent to distr ibute proceeds of prostitution, in violation of 18 U .S.C. § § 371, 2421, 2422 (a) , and 1952 (a) . He also pleaded guilty to a specific count of interstate t ravel for purposes of prostitution in violation of 18 U.S.C. § 1952 (a)(3) and (2)

. Quoting his brief, Barham raises the following questions on appeal: 1. Was appellant’s guideline range mistakenly calculated because it w as based on the treatment of victims as minors? 2. Is remand within the Court’s discretion because the sentence was excessive? Appellant’s Brief, p. 4. We will affirm

. Barham asserts that the District Court mistakenly applied U.S. Sentencing Guidelines Manual § 2G1.3 (2007 ) because he did not persona lly victimize any minors. Barha m failed to preserve this issue and we review it for plain error. United States v. Johnson, 302 F.3d 139, 153 (3d Cir. 2002). 1

1 

### Barham moved for permission not to attend a presentence evidentiary hearing, plainly stating in the motion that he was withdrawing his objections to the Report. Evidence before the District Court contradicts Barham’s argument, showing that he prostituted a seventeen year - old girl. He also ignores the relevance of conduct of his co

- conspirators who prostituted over forty minors

. Given Barham’s admitted interaction with his co

- conspirators, and the routine recruitment of minors that was pervasive in the co nspiracy, there is no question that this conduct is attributable to him. Moreover, Barham’s sentence of 108 months was calculated from the statutory maximums that resulted from his plea agreement. We conclude from all of this that t he District Court did not err.

### 3 Barham also appeals the substantive reasonableness of his sentence. Yet, in its consideration of Barham’s sentence, t he District Cou rt took into account the facto rs enumerated under 18 U.S.C. § 3553(a) and assessed the reasonablene ss of the pl ea bargain sentence , weighing his role in the conspiracy with the gravity of the offense. W e conclude that his sentence of 108 months is eminently reasonable and will affirm the judgment of sentence of the District Court.