United States v. Hill , 239 F. App'x 460 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 29, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-6363
(D.C. No. CR-05-00011-01-L)
BRA ND ON KEITH H ILL, (W .D. Okla.)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before HA RTZ, Circuit Judge, BROR BY, Senior Circuit Judge and
T YM K O VIC H, Circuit Judge.
The district court convicted Brandon Keith Hill of various federal crimes
on evidence that he w as a pimp, running a ring of prostitutes (some of w hom were
minors) whom he transported across state lines from Oklahoma to Texas, Florida,
and Colorado. Hill was convicted in count one of a superceding indictment of
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
operating a business enterprise involving prostitution through coercion and by
relying on a facility in interstate commerce to further that enterprise in violation
of various state laws and 18 U.S.C. §§ 2421 and 2422. He was also convicted
under count one of engaging in interstate travel or transportation in aid of a
racketeering enterprise in violation of 18 U.S.C. § 1952. Hill does not appeal
these convictions.
He does, however, appeal his conviction on counts two through six for
knowingly transporting various females in interstate commerce with the intent
that the females engage in prostitution in violation of 18 U.S.C. § 2421, and for
aiding and abetting such activity in violation of 18 U.S.C. § 2. Hill contends that
the evidence was insufficient to convict him on these charges. He also argues
that his sentence was excessive and unreasonable.
Our jurisdiction arises under 28 U.S.C. § 1291. Because a rational fact
finder could easily have found that Hill either transported or aided and abetted the
transportation of females in interstate commerce for the purpose of prostitution,
the convictions on counts two through six are affirmed. W e agree with both
parties that the sentence imposed here constitutes plain error. W e therefore
remand this case to the district court with instructions to vacate the sentence and
to re-sentence Hill in accordance with this order and judgment.
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Sufficiency of the Evidence
W e review a challenge based on insufficiency of the evidence de novo,
viewing all evidence in the light most favorable to the government. United States
v. Robinson, 435 F.3d 1244, 1250 (10th Cir. 2006). In doing so “we examine all
of the evidence and the reasonable inferences to be drawn from that evidence to
determine whether any rational [fact finder] could have found the elements of the
crime beyond a reasonable doubt.” Id. (quotation omitted).
Hill argues that the government failed to prove he actually transported
individuals in interstate commerce for the purpose of prostitution. Hill ignores
the fact, however, that he was also charged and convicted of aiding and abetting
such activity in violation of 18 U.S.C. § 2. Further, in cases of this type, “intent,
motive and purpose of an accused may be proved by circumstantial evidence and
the environment and conduct of the parties within a reasonable time before and
after the transportation may be considered.” Johnson v. United States, 380 F.2d
810, 811 (10th Cir. 1967). Applying this standard, we are left with no doubt as to
the sufficiency of the evidence.
W hile H ill is correct that the record fails to establish that he literally
“transported” the women across state lines, see United States v. Footman,
215 F.3d 145, 153 (1st Cir. 2000), there is abundant evidence that, as an aider and
abetter, H ill “caused” the women to be so transported in order to facilitate their
prostitution, id. Because an aider and abettor is deemed to be a principal under
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the law, United States v. Cooper, 375 F.3d 1041, 1049 (10th Cir. 2004), Hill was
properly convicted on counts two through six.
Sentencing error
In reliance on an erroneous pre-sentence report which mistakenly calculated
Hill’s guideline range at 188 to 235 months, the district court sentenced Hill to
210 months imprisonment. The error arose when the pre-sentence report treated
tw o of the victims as minors when, in fact, both were adults. Compare United
States Sentencing Guidelines M anual (USSG ) § 2G1.3 (2005) (applicable when
the victim is a minor) with U.S.S.G. § 2G1.1 (applicable w hen the victim is not a
minor). W hen properly recalculated, the correct guideline range was 151-188
months. As mentioned above, the government, with necessary but still
appreciated candor, concedes this error. 1
Because H ill did not object to the m ethod by which the district court
arrived at his sentence, we review only for plain error. United States v.
Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006), cert. denied, 127 S. Ct. 3043(2007). “Plain error occurs when there is (1) error, (2) that is plain, which
(3) affects substantial rights, and which (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 1222 (quotation
omitted).
1
W hile w e appreciate the government’s approach, we note that a party’s
concession on a matter of law does not bind this court. United States v. Osuna,
189 F.3d 1289, 1295 n.7 (10th Cir. 1999).
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Under this framew ork, it is clear that the district court erred in calculating
Hill’s sentence based on a faulty understanding of the age of tw o of the victims.
The error was also plain because it is clear and obvious under current law that
U.S.S.G. § 2G1.3 applies only when the victim is a minor. See United States v.
Johnson, 520 U.S. 461, 467-68 (1997) (defining “plain” error); see also U.S.S.G .
§ 2G1.3 and cmt. n.1 (dealing strictly with offenses involving minors who are
defined, inter alia, as “individuals who have not attained the age of 18 years”).
The error here also affected substantial rights because it “affected the outcome of
the district court proceedings” resulting in a sentence beyond the applicable
guideline range and rendering the sentence illegal. United States v. Olano,
507 U.S. 725, 734 (1993); United States v. Brown, 316 F.3d 1151, 1160 n.4
(10th Cir. 2003). And, finally, this court has discretion to correct the error if Hill
persuades us that the plain error here “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Olano, 507 U.S. at 736 (quotation
omitted). Because the error resulted in a sentence at least twenty-two months
above the guideline maximum, the plain error satisfies this fourth prong of Olano,
and we will exercise our discretion to correct it. See Brown, 316 F.3d at 1161(collecting cases).
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W e AFFIRM Hill’s convictions but REVERSE and REM AND for the
district court to vacate the sentence and to re-sentence Hill in accordance with
this order and judgment.
Entered for the Court
W ade Brorby
Senior Circuit Judge
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