United States v. Lloyd Royal, III , 442 F. App'x 794 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4806
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LLOYD MACK ROYAL, III,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:09-cr-00048-AW-1)
Submitted: July 21, 2011 Decided: August 10, 2011
Before KING and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David W. Lease, SMITH, LEASE & GOLDSTEIN, LLC, Rockville,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, Thomas E. Perez, Assistant
Attorney General, Jessica Dunsay Silver, Lisa J. Stark,
Attorneys, Civil Rights Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Lloyd Mack Royal, III, of seven offenses:
conspiracy to commit sex trafficking, 18 U.S.C. § 371; sex
trafficking, 18 U.S.C. § 1591; possession of a firearm in
furtherance of a crime of violence, 18 U.S.C. § 924(c);
conspiracy to distribute narcotics, 21 U.S.C. § 846; and
distribution of narcotics to persons under the age 21, 21 U.S.C.
§ 859. The district court sentenced Royal to a total of 37 years
of imprisonment.
On appeal, Royal does not challenge his convictions.
Instead, he argues that the district court erred in five
respects in calculating his sentence. Namely, he maintains that
the district court erred in applying the following four
sentencing guidelines enhancements: (1) vulnerable victim; (2)
use of a computer; (3) obstruction of justice; and (4)
leadership role. In addition, he assigns error in the district
court’s consideration of conduct that was not proven to the jury
beyond a reasonable doubt. As explained below, we affirm.
I.
In April 2007, Royal met seventeen-year-old Melissa P. 1, a
homeless, drug-using, high-school dropout. Melissa’s mother was
1
Because the victims were minors at the time of the
offense, the record refers to them by first name only.
2
recently divorced and living in a homeless shelter and Melissa
had no contact with her family. Melissa survived by stealing
food, sleeping in storage bins, and by spending time in fast-
food restaurants and the basements of apartment buildings.
Several hours after meeting Melissa, and after Royal gave her
alcohol and marijuana, Melissa had sex with Royal and his cousin
because she needed a place to sleep.
Royal arranged for Melissa to stay at the residence of
Shantia Tibbs and subsequently, the residence of Angela
Bentolila. Shortly thereafter, Melissa introduced Royal to
another seventeen-year-old girl named Stephanie. After meeting
Stephanie, Royal gave both girls alcohol and marijuana. He later
instructed them to dance naked on a bed and repeatedly engaged
in sexual acts with them. While Melissa lived with Bentolila,
Royal repeatedly assaulted Melissa, threatened to kill her and
harm her sister, and anally raped her.
Several weeks after meeting both girls, Royal directed
Tibbs to find customers willing to pay for sex with the
teenagers. Tibbs contacted Mark Witherspoon, who agreed to pay
for sex. The same day, Tibbs and Bentolila prepared Melissa and
Stephanie for prostitution by providing them with provocative
clothing, styling their hair and applying their makeup.
Bentolila provided Royal with a vehicle and cell phone to
facilitate the commercial sex. Tibbs drove Melissa and Stephanie
3
to Witherspoon’s Washington, D.C. residence and watched while
the girls engaged in sex acts with Witherspoon. Afterwards,
Tibbs collected money from Witherspoon and gave that money to
Royal.
In May 2007, Royal observed one of Melissa’s friends on the
social internet website MySpace and directed Melissa to contact
the girl because he “needed another girl” and “thought she was
gorgeous.” J.A. 267. At Royal’s direction, Melissa “typed” the
friend, Ilana, and later called her in order to facilitate the
introduction. J.A. 267. Ilana was fifteen years of age. On May
8, 2007, Royal, along with an acquaintance, took Melissa and
Ilana to an apartment where Royal and the acquaintance converted
powder cocaine into crack cocaine. At that time, Royal provided
Melissa and Ilana with cocaine, phencyclidine (PCP), and
ecstasy. After providing the girls with drugs, Royal drove them
to Tibbs’ residence where she provided Ilana with clothing and
Melissa with condoms and a dental dam for use during commercial
sex. Royal then took the girls to a hotel, where they both
engaged in commercial sex acts with a customer. The following
day, Royal again provided the girls PCP and facilitated
commercial sex with the same customer.
Toward the end of May, law enforcement received a tip
concerning Royal’s activities and questioned Melissa, who denied
having any knowledge. Melissa informed Royal, who instructed
4
Melissa to “lie” and state that he [Royal] “had no idea [about
her] age.” J.A. 210-11.
In addition to the sex trafficking, from September 2006
through May 2007, Royal arranged through Crystal Brown, a former
girlfriend, the purchase of cocaine from a source in New York.
Brown drove Royal to the source and provided him with the cash
to purchase the cocaine. Brown also permitted Royal to sell and
store marijuana and cocaine from her residence. From November
2006 to May 2007, Bentolila bought cocaine from Royal dozens of
times. Royal often brought drugs to Bentolila’s house, which
Bentolila shared with Melissa and Stephanie as well as others.
In April 2007, Royal forced Melissa to use cocaine, a drug she
had never tried.
On January 28, 2009, Royal was indicted for conspiracy to
commit sex trafficking, sex trafficking and possession of a
firearm in furtherance of a crime of violence. Nearly six months
later, the grand jury returned a second superseding indictment
charging Royal with conspiracy to commit sex trafficking, three
counts of sex trafficking, possession of a firearm in
furtherance of a crime of violence, conspiracy to distribute
controlled dangerous substances, and two counts of distribution
of controlled dangerous substances to persons under the age of
twenty-one.
5
On February 3, 2009, Royal and Bentolila were in adjoining
holding cells waiting to make an appearance in the instant case.
Royal instructed Bentolila to “Do the right thing and not
snitch.” J.A. 130. Bentolila explained that she understood
Royal’s directive to mean she should not say anything at all.
After a trial lasting from March 16, 2010, to March 24,
2010, Royal was convicted by a jury of all counts. However, on
the drug conspiracy count, the jury found Royal not guilty of
one of the three objects of the drug conspiracy (i.e., Royal was
found guilty of conspiring to distribute cocaine and marijuana,
but not PCP). On July 19, 2010, the district court conducted
Royal’s sentencing hearing. At the sentencing hearing, Royal
challenged the vulnerable victim enhancement, the use of a
computer enhancement, the obstruction of justice enhancement and
the aggravating role in the offense enhancement.
The district court concluded the vulnerable victim
enhancement was applicable because Melissa, Stephanie and Ilana
came from “dysfunctional families,” were “allowed to roam and
hit the streets, and one was living essentially in a dumpster.”
J.A. 336-67. The court also cited the fact that Royal gave them
drugs in order to take further advantage of them.
The court concluded that the obstruction of justice
enhancement was justified because Royal sought to “influence”
Bentolila by telling her not to snitch. J.A. 367. The district
6
court concluded that the use of a computer enhancement was
warranted because Royal “directed and caused it[s]” use and
directed Melissa to recruit Ilana. In total, the court sentenced
Royal to an aggregate sentence of 37 years.
Royal filed a timely notice of appeal on July 23, 2010. We
have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review a sentence imposed by a district court for
reasonableness, applying a deferential abuse of discretion
standard. See Gall v. United States, 552 U.S. 38, 51 (2007). The
first step in the court’s review of a sentence is to “ensure
that the district court committed no significant procedural
error, such as . . . improperly calculating [ ] the Guidelines
range . . . [or] selecting a sentence based on clearly erroneous
facts.” Id. In assessing whether a sentencing court has properly
applied the Guidelines, the court reviews factual findings for
clear error and legal conclusions de novo. United States v.
Llamas, 599 F.3d 381, 387 (4th Cir. 2010) (citing United States
v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008)).
A.
Royal first challenges the district court’s application of
the vulnerable victim adjustment pursuant to U.S.S.G. § 3A1.1,
which provides that a two-level adjustment applies “[i]f the
7
defendant knew or should have known that a victim of the offense
was a vulnerable victim.” Before making the adjustment, the
court must first determine that a victim was “unusually
vulnerable due to age, physical or mental condition, or . . .
otherwise particularly susceptible to the criminal conduct.”
USSG § 3A1.1 cmt. n. 2. 2 See Llamas, 599 F.3d at 388. The
sentencing court must also find the defendant knew or should
have known of the victim’s unusual vulnerability. Id. In other
words, applying the vulnerable victim adjustment “requires a
fact-based explanation of why advanced age or some other
characteristic made one or more victims unusually vulnerable to
the offense conduct, and why the defendant knew or should have
known of this unusual vulnerability.” Id. (citing United States
v. Vega-Iturrino, 565 F.3d 430, 434 (8th Cir. 2009) (internal
quotation marks omitted)).
The vulnerable victim adjustment does not apply, however,
if the factor that makes the person a vulnerable victim is
incorporated in the offense guideline. For example, if an
offense guideline provides an enhancement for the age of the
victim, the vulnerable victim enhancement could not be applied
2
The adjustment currently does not require that the
defendant have targeted the victim specifically because of his
vulnerability. Before the 1995 amendment to § 3A1.1, Application
Note 2 stated that the adjustment “applies to offenses where an
unusually vulnerable victim is made a target of criminal
activity by the defendant.” See app. C, amend. 521.
8
because of the age of the victim. USSG § 3A1.1 cmt. n. 2; see
also United States v. Grubbs, 585 F.3d 793, 805 (4th Cir. 2009).
In addition, when an offense has multiple victims, the
government need only prove that one victim was unusually
vulnerable. Llamas, 599 F.3d at 388. Finally, in applying §
3A1.1(b)(1), a sentencing court should consider “all relevant
conduct.” United States v. Bolden, 325 F.3d 471, 500 (4th Cir.
2003). Because the court’s determination is factual, we review
for clear error. Llamas, 599 F.3d at 388.
Here, the record reflects that the district court found
circumstances besides the age of the victims that made them
particularly vulnerable to Royal’s scheme. At Royal’s sentencing
hearing, the district court concluded:
The Court has heard both sides, and the Court is in
agreement with the government on these other issues in
terms of the vulnerable victim and enhancement for
that. Clearly, the evidence that I heard suggests that
it’s not based on age so much. . . . What we have here
essentially is a vulnerable victim or victims, and it
was more than age. You had a couple, probably all
three of the minors come, from dysfunctional families.
. . . They were allowed to roam and hit the streets,
and one was living essentially in a dumpster almost.
And essentially he was able to take advantage of them
because of their vulnerability, and that’s what the
facts were. So, I think the enhancement for
vulnerability is correct.
J.A. 366-67.
The record reflects that within hours of meeting each of
the victims, Royal knowingly exploited their dependence on drugs
9
and alcohol by supplying each victim with alcohol, marijuana,
cocaine, PCP or ecstasy. Throughout Royal’s sexual exploitation
of the victims, he continued to provide drugs and alcohol. As
such, Royal took advantage of each victim’s drug dependence
vulnerability. See, e.g., United States v. Evans, 272 F.3d 1069,
1091 (8th Cir. 2001) (victim vulnerable to sex trafficking
because defendant knew she was drug-addicted and provided her
drugs); United States v. Amedeo, 370 F.3d 1305, 1317-18 (11th
Cir. 2004) (teenage victim’s “drug addiction rendered him
unusually vulnerable” to defendant’s supplying him with
cocaine).
In addition, the record reflects that Melissa was homeless
when she met Royal and had no contact with her mother. See,
e.g., United States v. Irving, 554 F.3d 64, 75 (2d Cir. 2009)
(“children who were homeless and were without parental or other
appropriate guidance made them unusually vulnerable,
independently of their ages”). As the government explained at
sentencing, Royal not only took advantage of all of the victims’
drug dependencies by “reduc[ing] their ability to say no and to
make them easier to coerce,” Royal “took advantage of
[Melissa’s] situation,” and “placed [Melissa] with co-
conspirators to enhance [his] control over her.” J.A. 360-61.
Accordingly, the district court did not err in applying the §
10
3A1.1 two level enhancement for the vulnerability of Royal’s
victims.
B.
Next, Royal challenges the district court’s application of
the use of a computer enhancement pursuant to U.S.S.G.
2G1.3(b)(3) for conspiracy to commit sex trafficking and the
substantive sex trafficking offense involving Ilana. Such an
adjustment is warranted if a “computer or interactive computer
service” is used to “(A) persuade, induce, entice, coerce, or
facilitate the travel of, the minor to engage in prohibited
sexual conduct; or (B) entice, encourage, offer, or solicit a
person to engage in prohibited sexual conduct with the minor.”
U.S.S.G. § 2G1.3(b)(3). The enhancement applies even if a
defendant did not personally use the computer since the
enhancement “makes no mention of the defendant, but focuses on
the mechanism involved in the offense.” United States v. Dotson,
324 F.3d 256, 259 (4th Cir. 2003).
Here, Melissa testified that while she was on her MySpace
page, Royal saw a picture of Ilana and told Melissa that “he
wanted her.” J.A. 267. After informing Royal that Ilana was only
fifteen years old, Royal indicated that he did not care and
prompted Melissa to message her. J.A. 266-67. Nevertheless,
Royal contends that even if a message were typed to Ilana, there
11
is no testimony as to what that message was or whether it
related to Royal.
We find Royal’s argument unpersuasive. The enhancement
applies even if a message soliciting sexual conduct is not
transmitted via computer; it is sufficient that a computer
“facilitate” a minor’s “engage[ment] in prohibited sexual
conduct.” U.S.S.G. § 2G1.3(b)(3). See also United States v. Lay,
583 F.3d 436, 447 (6th Cir. 2009) (“To allow a predator to use a
computer to develop relationships with minor victims, so long as
the ultimate consummation is first proposed through offline
communication, would not serve the purpose of the
enhancement.”). Accordingly, the district court did not err in
increasing Royal’s offense level by two levels for use of a
computer pursuant to § 2G1.3(b)(3).
C.
Next, Royal challenges the district court’s application of
the obstruction of justice adjustment. He contends the evidence
is insufficient to demonstrate that he acted willfully.
Guideline § 3C1.1 directs a sentencing court to add two offense
levels if “the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the investigation or prosecution” of the offense. The
commentary to § 3C1.1 lists the “threatening, intimidating, or
otherwise unlawfully influencing a co-defendant, witness, or
12
juror, directly or indirectly, or attempting to do so” as an
example of conduct to which the enhancement applied. U.S.S.G. §
3C1.1, cmt. 4(a). We will uphold the enhancement so long as the
sentencing court’s findings include the “factual predicate for a
finding” that a defendant acted willfully. See United States v.
Castner, 50 F.3d 1267, 1279 (4th Cir. 1995). Finally, the
government satisfies its burden if it can establish a defendant
willfully obstructed justice by a preponderance of the evidence.
United States v. Kuilin, 360 F.3d 456, 460 (4th Cir. 2004).
Here, in applying the enhancement, the district court
reasoned:
[T]he evidence that I heard and which everyone here
agrees that Mr. Royal did say in lockup is, “Do the
right thing and don’t snitch.” And looking at all of
the evidence associated in this case and the fact that
the person who testified, . . . , indicated that she
was afraid and nervous, and I heard that clearly, that
is a bases [sic] to obstruct the processes of the
court and to influence testimony, and clearly
obstruction of justice is applicable.
J.A. 367. The district court’s findings are sufficient to
sustain the adjustment. Even if we were to hold that Royal’s
“don’t snitch” comment was insufficient, Royal also prompted
Melissa to “lie about her age” to law enforcement and to tell
the police that he had “no idea as to her actual age” and to
place the blame on a co-conspirator. J.A. 210-211. Melissa
followed Royal’s instructions and did, in fact, lie to law
enforcement when initially questioned. This instruction to
13
Melissa provides an additional reason to affirm the adjustment.
See United States v. Garnett, 243 F.3d 824, 830 (4th Cir. 2001)
(court can affirm a sentence on the basis of any conduct in the
record that supports an increase in the offense level); United
States v. Ashers, 968 F.2d 411, 414 (4th Cir. 1992) (if one
basis for application of an enhancement is erroneous,
enhancement may be affirmed based on correctly determined
alternative basis). Accordingly, the district court did not err
in increasing Royal’s offense level by two levels for
obstruction of justice pursuant to U.S.S.G. § 3C1.1.
D.
Next, Royal challenges the district court’s application of
the leader or organizer role adjustment pursuant to U.S.S.G. §
3B1.1(a), which directs a sentencing court to add four offense
levels “[i]f the defendant was an organizer or leader of a
criminal activity that involved five or more participants.”
Guideline §3B1.1 does not apply to a defendant who merely
organizes or supervises a criminal activity executed without the
aid of others, but must involve an exercise of some degree of
control over others for the commission of the offense. In making
this determination, the commentary instructs the sentencing
court to consider the exercise of decision-making authority; the
nature of the participation in the commission of the offense;
the recruitment of accomplices; the claimed right to a larger
14
share of the fruits of the crime; the degree of participation in
planning the offense; the nature and scope of the illegal
activity; and the degree of control exercised over others.
U.S.S.G. § 3B1.1 (commentary).
Here, the record reflects that there were at least seven
people involved in the drug conspiracy: Royal, Crystal Brown,
Brown’s cousin Chris, Bentolila, Tibbs, Thomas King, and Paul
Green. In addition, the record clearly supports the district
court’s conclusion that Royal not only exercised control over
all of the participants, but he organized the conspiracy. While
Royal argues that “there was no other evidence . . that the drug
conspiracy would be considered . . . extensive” and that the
district court remarked that Royal “was not the biggest drug
dealer that I’ve seen,” these facts are irrelevant to the
conclusion that Royal was the leader of a drug distribution
conspiracy involving five or more people. As such, the district
court did not err in enhancing Royal’s offense level pursuant to
U.S.S.G. § 3B1.1(a).
E.
Finally, Royal alleges that the district court violated his
Fifth and Sixth Amendment rights in applying enhancements based
on conduct he was not charged with, did not admit to, and was
not supported by proof beyond a reasonable doubt as determined
by a jury. This argument is without merit.
15
In United States v. Grubbs, 585 F.3d 793 (4th Cir. 2009),
cert. denied, 130 S. Ct. 1923 (2010), we recently rejected the
same claim. “[A] sentencing court may consider uncharged and
acquitted conduct in determining a sentence, as long as that
conduct is proven by a preponderance of the evidence.” Id. at
799 (quoting United States v. Watters, 519 U.S. 148, 157 (1997);
United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994). The
panel concluded that Booker “did not change the sentencing
court’s ability to consider” such conduct. Id. (citing United
States v. Benkahla, 530 F. 3d 400 (4th Cir. 2008) (“Sentencing
judges may find facts relevant to determining a Guidelines range
by a preponderance of the evidence, so long as that Guidelines
sentence is treated as advisory and falls within the statutory
maximum authorized by the jury’s verdict.”). As such, we
concluded that no Sixth Amendment impediment existed because the
“judge could disregard the Guidelines and apply the same
sentence . . . in the absence of the special facts.” Id. at 799.
The “point is thus that the Guidelines must be advisory, not
that judges may find no facts.” Id. Fatal to Royal’s challenge,
we also concluded that “the due process clause of the Fifth
Amendment does not require the district court to find uncharged
conduct by a heightened standard of proof before using it as a
basis for determining a defendant’s sentence.” Id. at 802.
16
III.
For the foregoing reasons, Royal’s sentence is
AFFIRMED.
17