United States v. Morgan ( 2022 )

Appellate Case: 21-5053 Document: 010110673295 Date Filed: 04/20/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 20, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-5053
(D.C. No. 4:20-CR-00132-JFH-1)
DOMINIQUE LARON MORGAN, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, EBEL, and KELLY, Circuit Judges.**
_________________________________
Mr. Morgan pled guilty to coercion and enticement of a minor to engage in
sexual activity, 18 U.S.C. § 2422(b), and possession of a firearm in furtherance of a
drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). He challenges the procedural
reasonableness of his 300-month sentence arguing that the district court relied on
erroneous facts and improperly applied a five-level enhancement under U.S.S.G.
*
This order and judgment is not binding precedent, except under the doctrines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.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
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§ 4B1.5(b)(1). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a), we affirm.
Background
Mr. Morgan first contacted A.W., a 16-year-old girl, on Facebook on April 10,
2020. Six days later, A.W. ran away from home and went to live with Mr. Morgan
and his co-defendants. The next day, Mr. Morgan’s co-defendant helped A.W. set up
an account on SkiptheGames.eu advertising A.W. as a prostitute, with nude and
partially nude photos of A.W. Supp. R. 13–14. The website allows “customers” to
find prostitutes and includes information about services performed.
Between April 16 and April 20, 2020, A.W. had seven dates.1 During her first
date, Mr. Morgan was in another room. A.W. gave Mr. Morgan the money she
received from that date. Mr. Morgan provided A.W. marijuana, she remained “on
drugs the whole time,” she was with him, and A.W. sold marijuana for Mr. Morgan.
Supp. R. 19. Mr. Morgan also had unprotected sex with A.W. during this period.
On April 20, 2020, A.W. scheduled a date with Detective Brendan Burke, who
was investigating the case. With Mr. Morgan in the car, his codefendant drove A.W.
to a hotel for the date. Supp. R. 17–18. A.W. did not know if Mr. Morgan stayed in
the parking lot during the date.
During an initial interview in the hotel room, A.W. lied to Officer Burke to
protect Mr. Morgan. At a later point, A.W. had a forensic interview. However, when
1
In this context, a “date” is a meeting between a prostitute and a customer.
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asked (before a grand jury) about the forensic interview, A.W. noted that the
interviewer got several of her life events mixed up.
Several messages between A.W. and Mr. Morgan were also recovered by
Officer Burke. At one point, Mr. Morgan messaged A.W.: “We got some mfs
coming thru ND you might have to play a role like you Gina’s girl or something.”
Supp. R. 48. Additionally, Mr. Morgan told A.W. that she might have to sleep with
them. At another point, A.W. messaged Mr. Morgan that she was trying to get
customers, to which he replied, “You will.”
Mr. Morgan was indicted on seven counts. Count 3 alleged that Mr. Morgan
“knowingly possessed a firearm . . . in furtherance [of] a drug trafficking crime,” in
violation of 18 U.S.C. § 924(c)(1)(A). Count 5 alleged that Mr. Morgan “knowingly
attempt[ed] to persuade, induce, coerce, and entice an individual who had not
attained the age of eighteen years to engage in any sexual activity for which any
person can be charged with a criminal offense,” in violation of 18 U.S.C. § 2422(b).
In March 2021, Mr. Morgan pled guilty to Counts 3 and 5. In his guilty plea, Mr.
Morgan admitted that “from April 10, 2020 until April 20, 2020, . . . I used a mobile
phone and the internet to entice a minor, A.W., to engage in prostitution.”
Mr. Morgan made two objections to the PSR. First, he objected to the
accuracy of the factual statements in paragraph 12 of the PSR, which read:
She gave all the money she earned to Morgan. When A.W. was
engaged in commercial sex acts, Morgan was either present in a
separate bedroom, in a nearby room, or in the parking lot. During this
same time period, Morgan engaged in sexual intercourse with A.W. on
multiple occasions. Morgan also provided A.W. with marijuana.
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Mr. Morgan also objected to the application of a five-level enhancement
pursuant to U.S.S.G. § 4B1.5(b)(1) because there were not facts sufficient to support
the conclusion that there were “multiple occurrences of prohibited sexual conduct.”
The district court found “that the information contained in paragraph 12 of the
presentence investigation report is supported by the evidence in this case and it is
accurately stated.” The court also found that A.W.’s grand jury testimony
established six or seven occasions where Mr. Morgan enticed A.W. to engage in
sexual activity and that this justified the five-level enhancement. The court then
calculated an offense level of 35 and a criminal history category of IV. This resulted
in a guideline range of 235–293 months for Count 5 and 60 months to run
consecutively for Count 3. After reviewing the 18 U.S.C. § 3553(a) factors, the court
concluded that a variance was not warranted. Consequently, the court imposed a
prison term of 240 months on Count 5 and 60 months on Count 3, to run
consecutively, for a total sentence of 300 months’ imprisonment. The court also
imposed a supervised release term of twenty years.
Discussion
We review a challenge to the procedural reasonableness of a criminal sentence
for an abuse of discretion. United States v. Bellamy, 925 F.3d 1180, 1184–85 (10th
Cir. 2019). In assessing how a sentence is calculated, this court reviews factual
findings for clear error. Id. at 1185. “A finding is clearly erroneous ‘only if [it] is
without factual support in the record or if, after reviewing all the evidence, we are
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left with a definite and firm conviction that a mistake has been made.’” United States
v. Shippley, 690 F.3d 1192, 1199 (10th Cir. 2012) (alteration in original) (quoting
United States v. Mullins, 613 F.3d 1273, 1292 (10th Cir. 2010)). On clear error
review, this court accepts the district court’s reasonable inferences. United States v.
Cash, 733 F.3d 1264, 1273 (10th Cir. 2013). A district court’s credibility
determination “that is not contradicted by extrinsic evidence, . . . if not internally
inconsistent, can virtually never be clear error.” Anderson v. City of Bessemer City,
470 U.S. 564, 575 (1985).
A. The district court did not clearly err by adopting paragraph 12 of the PSR.
Mr. Morgan challenges the district court’s findings that: (1) A.W. gave all the
money she earned to Mr. Morgan; and (2) when A.W. was engaged in commercial
sex acts, Mr. Morgan was present or nearby. A.W. testified that after her initial date,
she gave all the money to Mr. Morgan. And Officer Burke testified that based on his
interview of A.W., the money A.W. kept was for food or rent, which A.W. testified
she paid to Mr. Morgan. The district court’s inference that all the money A.W.
earned went to Mr. Morgan was reasonable. See Cash, 733 F.3d at 1273.
As to the second point, Mr. Morgan argues the evidence only supports one
incident “[w]hen A.W. was engaged in commercial sexual acts, [where] Morgan was
either present in a separate bedroom, in a nearby room, or in the parking lot.” We
disagree. To be sure, A.W. testified that Mr. Morgan was in the room on her initial
date, and that she did not know if Mr. Morgan was outside the hotel during her date
with Officer Burke. But the record fully supports the reasonable inference that Mr.
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Morgan was nearby during A.W.’s dates. Mr. Morgan exercised significant control
over A.W., and A.W. was reliant on Mr. Morgan for transportation. The inference
that he was in close proximity to A.W. during A.W.’s dates is not clearly erroneous.
See United States v. McClatchey, 316 F.3d 1122, 1129 (10th Cir. 2003).
Regardless, the claimed factual errors are harmless. Harmless error is error
“which did not affect the district court’s selection of the sentence imposed.” United
States v. Warren, 22 F.4th 917, 929 (10th Cir. 2022) (quoting United States v.
Montgomery, 439 F.3d 1260, 1263 (10th Cir. 2006)). As discussed below,
application of U.S.S.G. § 4B1.5(b)(1) requires multiple violations of 18 U.S.C.
§ 2422(b) or § 1591. Neither Mr. Morgan’s location, nor the proportion of A.W.’s
earnings that he received, are elements of either statute. See 18 U.S.C.
§§ 1591(a)(1), 2422(b).
B. The district court did not clearly err in applying the five-level enhancement
under U.S.S.G. § 4B1.5(b)(1).
Mr. Morgan also challenges the district court’s application of a five-level
enhancement under U.S.S.G. § 4B1.5(b)(1). Under § 4B1.5(b)(1), Mr. Morgan must
have engaged in “prohibited sexual conduct [] on at least two separate occasions.”
U.S.S.G. § 4B1.5 cmt. n.4(B)(i). Prohibited sexual conduct includes “any offense
described in 18 U.S.C. § 2426(b)(1)(A) or (B).” Id. cmt. n.4(A). This includes
offenses under 18 U.S.C. § 2422(b) and § 1591. 18 U.S.C. § 2426(b)(1)(A). Section
2422(b) provides that anyone who uses interstate commerce to persuade, induce,
entice, or coerce a minor “to engage in prostitution or any sexual activity for which
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any person can be charged with a criminal offense.” And § 1591(a)(1) provides that
“[w]hoever knowingly . . . recruits, entices, harbors, transports, provides, obtains,
advertises, maintains, patronizes, or solicits by any means a person . . . [who] has not
attained the age of 18 years and will be caused to engage in a commercial sex act,” is
liable.
Mr. Morgan argues that there is insufficient evidence to support that he: (1)
“coerced A.W. to perform commercial sex acts on multiple occasions”; and (2)
“received a financial benefit from A.W.’s commercial sex acts on multiple
occasions.” Given the number of dates and how the operation worked, the evidence
supports the district court’s conclusion that Mr. Morgan, at the very least, enticed
A.W. to perform commercial sexual acts on multiple occasions. As it is immaterial
whether Mr. Morgan derived a financial benefit from those acts, the court did not
erroneously apply the five-level enhancement.
Mr. Morgan pled guilty to one count of violating § 2422(b), but contends that
only one violation occurred when he messaged A.W.: “you might have to sleep with
them tonight.” But this ignores his prediction that she might have to entertain other
customers or his assurance that she would successfully attract new customers.
More to the point, Mr. Morgan and his codefendants taught A.W. how to use
the website, price dates, and book hotel rooms. Mr. Morgan helped A.W. travel to
dates. He gave her marijuana, and A.W. stayed in his apartment. Even if Mr.
Morgan’s actions were not coercive, he enticed and advertised A.W.’s commercial
sexual acts, and he helped transport and house her while she scheduled and attended
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dates. The district court’s finding that Mr. Morgan violated § 2422(b) multiple times
is not clearly erroneous.
Mr. Morgan also argues that although he received payment for A.W.’s first
date, there is no evidence that he received subsequent financial benefits. Even if only
part of the money A.W. earned as a prostitute went to Mr. Morgan and his co-
defendants to further the enterprise, the district court could reasonably conclude that
Mr. Morgan financially benefited from A.W.’s multiple commercial sexual acts.
Regardless, any error on this point was harmless. See Warren, 22 F.4th at 929.
Neither statute requires the offender to financially benefit from his actions. See 18
U.S.C. §§ 1591(a)(1), 2422(b). The district court did not erroneously apply the five-
level enhancement.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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