NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0386n.06
No. 07-4381
United States Court of Appeals
FILED
Jun 25, 2010
FOR THE SIXTH CIRCUIT
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff - Appellee, )
) Appeal from the United States
v. ) District Court for the Northern
) District of Ohio
KEVIN L. MURPHY, )
)
Defendant - Appellant. )
Before: BOGGS, MOORE, and GIBSON,* Circuit Judges.
PER CURIAM.
Kevin Murphy pled guilty to a five-count indictment, charging him with three counts of
transporting individuals for prostitution in violation of 18 U.S.C. §§ 2421 and 3583(k), and two
counts of transporting a minor for prostitution in violation of 18 U.S.C. §§ 2423(a) and 3583(k). The
district court sentenced Murphy to five concurrent identical sentences of 120 months’ imprisonment
followed by five years of supervised release. Murphy appeals his sentence, challenging the district
court's enhancement of his sentence for the use of a computer during the commission of an offense
*
The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit Court of
Appeals, sitting by designation.
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No. 07-4381
United States v. Murphy
and for misrepresenting the identity of a minor to facilitate the commission of the offense. He argues
that these enhancements violated his Sixth Amendment right to a trial by jury. We affirm.
A summary of the government's recited facts at the guilty plea hearing included evidence that
Murphy ran an escort service and had several adult women and one juvenile female working for him.
Murphy had an arrangement with an uncharged individual associated with a national collegiate
fraternity, Alpha Phi Alpha. The fraternity held regional and national conventions, which lasted
from two to four days. Murphy 's escort service provided female dancers to entertain at these
conventions. Murphy would let the conventioneers know that the dancers were available for
prostitution. He had an agreement with the dancers that they would receive certain fees for acts of
prostitution. Murphy oversaw the operation, from transporting the women to the conventions to
making the hotel arrangements. One of the dancers, whom he brought to the conventions and who
worked as a prostitute, was under the age of eighteen at the time.
Following the government's recitation of facts, the district court judge asked: "[d]o you have
any disagreement with it or do you wish to add anything to it?" Neither Murphy nor his attorney
contested the recited facts or offered any additional evidence.
The district court applied two enhancements in computing Murphy's base offense level. The
court enhanced Murphy's sentence for use of a computer to persuade, entice, coerce or facilitate the
travel of a minor to engage in prohibited sexual contact, U.S.S.G. § 2G1.3(b)(3)(A), and for the
misrepresentation of the identity of the minor to induce, coerce, persuade, or facilitate the minor to
engage in prostitution, U.S.S.G. 2G1.3(b)(2)(A). On appeal, Murphy contends that his sentence
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No. 07-4381
United States v. Murphy
violates the Sixth Amendment because it was based on facts he never admitted and no jury ever
found beyond a reasonable doubt.
It is true that the government's recitation of facts at the guilty plea hearing did not discuss
Murphy's use of a computer or evidence about Murphy’s misrepresentation of the identity of the
minor; however, the presentence report did. The presentence report discussed Murphy’s use of a
computer to advertise his escort service on the internet. The presentence report also outlined
evidence obtained from Murphy's computer, including "pictures of individuals and the minor used
to produce advertising fliers and cards" and other evidence that he "used his computer to
misrepresent the minor's identity to persuade, induce[,] entice, coerce and facilitate this minor to
engage in prostitution.” By failing to object to the presentence report, Murphy accepted all of the
factual allegations contained in it. United States v. Adkins, 429 F.3d 631, 632-33 (6th Cir. 2005).
Furthermore, the district court did not violate Murphy's Sixth Amendment right to trial by
jury when it made factual findings regarding the application of two specific offense characteristics.
The district court sentenced Murphy within the Guidelines range and treated the Guidelines as
advisory. See United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (citing United
States v. Booker, 543 U.S. 220, 245-46 (2005)).
For the forgoing reasons, the judgment of the district court is affirmed.
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