United States v. Calimlim, Elnora M. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-1112, 07-1113 & 07-1281
U NITED S TATES OF A MERICA,
Plaintiff-Appellee/Cross-Appellant,
v.
E LNORA M. C ALIMLIM and JEFFERSON N. C ALIMLIM ,
Defendants-Appellants/Cross-Appellees.
____________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 0248—Rudolph T. Randa, Chief Judge.
____________
A RGUED JANUARY 9, 2008—D ECIDED A UGUST 15, 2008
____________
Before W OOD , S YKES, and T INDER, Circuit Judges.
W OOD , Circuit Judge. At age 16, Irma Martinez began
working for the Mendoza family in the Philippines, where
it is common for wealthier families to have a live-in
housekeeper to attend to the house and children. Her
family was poor and depended on the salary she earned.
2 Nos. 07-1112, 07-1113 & 07-1281
At the urging of Dr. Jovito Mendoza (the father of defen-
dant Elnora Calimlim), Martinez traveled to the United
States when she was about 19 years old. She told consular
officials that she needed a visa in order to accompany
Dr. Mendoza, who was going to the United States for
medical treatment, but she really intended to stay in the
United States to work. Her visa permitted a two-year stay
as long as she departed and re-entered the United States
at least once every six months.
When Martinez arrived, Jefferson and Elnora Calimlim
confiscated her passport and told her that she would have
to reimburse the Mendozas for the cost of her plane ticket.
The Calimlims told her she was in the United States
illegally from the day after she arrived. Martinez was
unable to communicate in English for the first five or six
years of her stay.
Martinez worked for the Calimlims, both of whom are
physicians, as a live-in housekeeper. Her daily routine
usually began at 6:00 a.m. and ended around 10:00 p.m.,
seven days a week as well as during most vacations. Her
duties initially included caring for the Calimlim household
and children; eventually they expanded to include the
family cars, investment properties, and medical offices.
After ten years, the family moved to a more luxurious
house, 8,600 square feet in area and equipped with a
private tennis court. Martinez provided their only house-
hold help.
While she worked for the Calimlims, Martinez was
greatly restricted in what she could do. She never walked
out the front door of the first house, and only answered the
Nos. 07-1112, 07-1113 & 07-1281 3
door in the second house once—on Halloween, wearing
a mask. She was told not to play outside with the children
or leave her room in the basement during social functions,
even to go to the bathroom. She was permitted to walk to
church (one selected by Elnora), but only via a back path
that was well away from possible observation. Elnora did
not allow her to go to the same church too many times in
a row. When she was driven someplace she had to ride
in the back seat with her head down so that nobody could
see her. The “house rules” included a phone code that
enabled Martinez to answer the phone when the children
called, but not when outsiders did. The children were
told not to discuss Martinez with anyone outside the
family. Martinez was not permitted to seek medical care
outside of the house, even for special needs such as
dentistry.
The Calimlims allowed Martinez to speak with her
family four or five times over the 19 years she was with
them, and even then she was surrounded by the Calimlim
family while speaking on the phone. Martinez initially had
a savings account into which her earnings were deposited,
but Elnora closed it one day after Martinez’s visa expired.
Martinez authorized Elnora to send money to Martinez’s
family in the Philippines through Elnora’s parents’ ac-
count, but over the entire 19-year period, the total that the
Calimlims sent was only 654,412 pesos, or about $19,000.
Martinez’s “earnings” were nothing but a book entry in
the Calimlims’ accounts. Martinez was allowed to shop
for personal items, but she had to leave the cart in the
store (so that Elnora Calimlim could pay) and go wait in
the car; she would later “reimburse” the Calimlims for the
4 Nos. 07-1112, 07-1113 & 07-1281
cost through withheld “wages.” Martinez was told repeat-
edly by the adult Calimlims and their children that if
anyone discovered her she could be arrested, imprisoned,
and deported, and she would not be able to send any more
money back to her family. Fear of that consequence kept
her from breaking any of the rules or appearing outside
the house.
On September 29, 2004, federal agents, acting on an
anonymous tip, executed a search warrant and found a
trembling Martinez huddled in the closet of her bedroom.
A federal grand jury returned a third superseding indict-
ment on December 6, 2005, charging the Calimlims with
obtaining and conspiring to obtain forced labor (Counts 1
and 2), in violation of 18 U.S.C. §§ 371, 1589, and 1594, and
harboring and conspiring to harbor an alien for private
financial gain (Counts 3 and 4), in violation of 8 U.S.C.
§ 1324(a)(1). A jury convicted them of all four counts on
May 26, 2006. On November 16, 2006, the district court
sentenced the Calimlims to 48 months’ imprisonment on
each count, to run concurrently. Bond was denied pending
appeal.
The Calimlims appeal their convictions, and the Govern-
ment has cross-appealed from the district court’s refusal to
apply several enhancements in its calculation of the
advisory Sentencing Guideline range. We find no error
in the convictions, but we agree with the Government
that resentencing is required, and so we reverse and
remand for that purpose.
Nos. 07-1112, 07-1113 & 07-1281 5
I
The Calimlims challenge their convictions on several
grounds: that the forced labor statute is vague and
overbroad, that the jury instructions on the forced labor
counts failed to exclude the possibility of a conviction
for innocent actions, and that there was insufficient
evidence of financial gain on the harboring counts.
A. Vagueness and Overbreadth
The Calimlims raise two constitutional challenges to the
forced labor statute, 18 U.S.C. § 1589. First, they argue
that the statute is so vague that it fails to provide notice of
what is criminalized, and second, that it is overbroad
enough to punish innocent activity. They do not specify
which provision of the Constitution supports their posi-
tion, but the first argument apparently alludes to the
Due Process Clause of the Fifth Amendment, and the
overbreadth argument sounds like a First Amendment
free speech challenge.
A vagueness challenge is best described by the evils it
seeks to prevent: “Unconstitutionally vague statutes
pose two primary difficulties: (1) they fail to provide due
notice so that ‘ordinary people can understand what
conduct is prohibited,’ and (2) they ‘encourage arbitrary
and discriminatory enforcement.’ ” United States v. Cherry,
938 F.2d 748, 753 (7th Cir. 1991) (quoting Kolender v. Law-
son, 461 U.S. 352, 357 (1983)). The Calimlims argue that the
statute failed to put them on notice that warning Martinez
that she was violating the law by being in the country
6 Nos. 07-1112, 07-1113 & 07-1281
illegally could be construed as violating the forced labor
statute. This point overlaps to some degree with their
overbreadth argument. They also assert that this prosecu-
tion took the statute beyond the boundaries Congress
intended. Neither argument has merit.
We find that the forced labor statute provides sufficient
notice of what it criminalizes. Under 18 U.S.C. § 1589, it is
illegal
knowingly [to] provide[] or obtain[] the labor or
services of a person—
(1) by threats of serious harm to, or physical restraint
against, that person or another person;
(2) by means of any scheme, plan, or pattern in-
tended to cause the person to believe that, if the person
did not perform such labor or services, that person or
another person would suffer serious harm or physical
restraint; or
(3) by means of the abuse or threatened abuse of law
or the legal process . . . .
The Government did not allege that the Calimlims made
direct threats against Martinez within the scope of
§ 1589(1); the charges rest on subparts (2) and (3). They
kept Martinez under physical restraint and caused her to
believe that she might be deported and her family seriously
harmed because she would no longer be able to send
money. They also implicitly threatened her with deporta-
tion proceedings. Looking at those charges, the Calimlims
argue that the phrases “serious harm” and “threatened
abuse of the law or the legal process” are too vague to
Nos. 07-1112, 07-1113 & 07-1281 7
support criminal liability. They argue that while they did
notify Martinez that a threat existed from other quarters,
they did not threaten Martinez that they would take
action themselves.
A vagueness challenge not premised on the First Amend-
ment is evaluated as-applied, rather than facially. Chapman
v. United States, 500 U.S. 453, 467 (1991). Here, the action
criminalized by § 1589—“knowingly provid[ing] or
obtain[ing] the labor or services of a person”—is suffi-
ciently removed from anything protected by the First
Amendment that we must evaluate it as-applied. The
question is thus whether the Calimlims were on notice
that their conduct was illegal.
The presence of a scienter element to the offense makes
the Calimlims’ burden very difficult to carry. See Screws v.
United States, 325 U.S. 91 (1945) (rejecting vagueness
challenge to what is now 18 U.S.C. § 242 because it had a
scienter requirement). “When the government must prove
intent and knowledge, ‘these requirements . . . do[ ] much
to destroy any force in the argument that application of
the [statute] would be so unfair that it must be held in-
valid[.]’ ” Cherry, 938 F.3d at 754 (quoting Kolender, 461
U.S. at 839) (other internal quotations omitted). Section
1589 contains an express scienter requirement. In addition,
one of the three ways in which labor can be obtained
criminally contains a second scienter requirement: “by
means of any scheme . . . intended to cause the person to
believe . . . .” 18 U.S.C. § 1589(2). Obtaining the services of
another person is not itself illegal; it is illegal only when
accompanied by one of the three given circumstances, and
8 Nos. 07-1112, 07-1113 & 07-1281
the jury must find that the defendant knew that the
circumstance existed.
Even if the Calimlims did not know for certain that they
would be convicted, the language of the statute alerted
them to what was prohibited. They knew that they were
telling Martinez that if she did not do everything they
asked, they would not send money back home for her. The
Calimlims also knew that not sending money back home
was, for Martinez, a “serious harm.” The Calimlims also
warned Martinez about her precarious position under
the immigration laws, conveniently omitting anything
about their own vulnerability. The jury was instructed on
scienter and found conduct that met the definition.
The Calimlims further assert that a reader of the statute
would think that only direct threats are forbidden. That
is not, however, what it says. The statute does not specify
that the “serious harm” be at the defendant’s hand. It
requires that the plan be “intended to cause the [victim] to
believe that” that harm will befall her. 18 U.S.C. § 1589(2).
This subsection describes a more indirect form of threat
than that covered by § 1589(1), which criminalizes direct
“threats of serious harm to . . . [the victim] or another
person.” Taken as a whole, the statute provides ample
notice that it prohibits intentionally creating the belief
that serious harm is possible, either at the defendant’s
hands or those of others.
We have found only one unpublished decision from a
district court that has directly addressed this issue, and
that court took the same approach that we have. See United
States v. Garcia, 2003 U.S. Dist. Lexis 22088 (W.D.N.Y., Dec.
Nos. 07-1112, 07-1113 & 07-1281 9
2, 2003) (unpublished). Our conclusion is, more impor-
tantly, consistent with the one that the Supreme Court
reached in Screws, supra, and Hill v. Colorado, 530 U.S. 703,
732-33 (2000), which rejected vagueness challenges to
statutes requiring scienter. The Hill Court reasoned that
“speculation about possible vagueness in hypothetical
situations not before the Court will not support a facial
attack on a statute when it is surely valid in the vast
majority of its intended applications[.]” 530 U.S. at 733
(quotation omitted).
A statute may also be unconstitutionally vague when an
ambiguity allows for arbitrary enforcement of the law
beyond what Congress intended. A statute is vague in this
sense when “[t]here is [a] lack of clarity . . . that would
give law enforcement officials discretion to pull within
the statute activities not within Congress’ intent.” United
States v. Collins, 272 F.3d 984, 989 (7th Cir. 2001). With
reference to § 1589, after the Supreme Court ruled that a
similar statute involving involuntary servitude, 18 U.S.C.
§ 1584, prohibited only servitude procured by threats of
physical harm, see United States v. Kozminski, 487 U.S. 931,
952 (1988), Congress enacted § 1589, see United States v.
Bradley, 390 F.3d 145, 156-57 (1st Cir. 2004); see also
22 U.S.C. § 7101(b)(13) (rejecting the definition of coercion
applied by Kozminski). The language of § 1589 covers
nonviolent coercion, and that is what the indictment
accused the Calimlims of doing; there was nothing arbi-
trary in applying the statute that way.
We turn, then, to the Calimlims’ overbreadth argument.
It is tempting to reject this for the simple reason that § 1589
penalizes conduct, whereas overbreadth is a doctrine
10 Nos. 07-1112, 07-1113 & 07-1281
designed to protect free speech. See Virginia v. Hicks, 539
U.S. 113, 118 (2003). The Calimlims argue that they are
focusing, however, on speech associated with the forbid-
den conduct. They speculate that, in the wake of their
convictions, innocent employers who merely warn their
workers about the consequences of illegal immigration or
a potential loss of health insurance coverage could get
caught up by this law. “[T]he overbreadth doctrine
permits the facial invalidation of laws that inhibit the
exercise of First Amendment rights if the impermissible
applications of the law are substantial when ‘judged in
relation to the statute’s plainly legitimate sweep.’ ” City of
Chicago v. Morales, 527 U.S. 41, 52 (1999) (quoting Broadrick
v. Oklahoma, 413 U.S. 601, 612-15 (1973)).
There are many problems with this argument. As we
said, § 1589 does not criminalize any speech; it bans
behavior that may involve speech. This blunts any
overbreadth attack. See id. at 52-53 (noting that an uncon-
stitutionally vague statute criminalizing “loitering,” which
may or may not involve speech and association, was not
subject to an overbreadth attack). Because of the scienter
requirement, any speech involved must be a threat or else
intended to achieve an end prohibited by law.
To the extent that § 1589 raises First Amendment con-
cerns, the scienter requirement limits the prohibited speech
to unprotected speech. The Calimlims imagine many
hypothetical innocent parties who might get swept up by
the law. For example, they pose the case of a small em-
ployer who tells her employees that they must start
paying a portion of their health insurance premiums or
Nos. 07-1112, 07-1113 & 07-1281 11
face the loss of their health insurance benefits (surely a
common situation in these times). This example does not
advance their case for overbreadth, however, because this
employer would not run afoul of the statute. This plan
could not be a “scheme . . . intended to cause the [em-
ployee] to believe that, if the person did not perform
such labor or services, that person or another person
would suffer serious harm . . . ,” 18 U.S.C. § 1589(2),
because the employee could quit and change jobs. The
employer is not procuring labor by means of this state-
ment, only lower wages or a renegotiation of the employ-
ment contract. There is no reliance on fear consistent with
an intended scheme. Irma Martinez did not have an exit
option: because the threats in her case involved her immi-
gration status, she could not freely work for another
employer in order to escape the threatened harm. Indeed,
had Martinez escaped, she could have informed the
authorities about the Calimlims’ own violation of the law
forbidding employment of an undocumented worker. See
8 U.S.C. § 1324a(1) (“It is unlawful for a person . . . (A) to
hire . . . for employment in the United States an alien
knowing the alien is an unauthorized alien . . . with respect
to such employment. . . .”). The Calimlims’ problem is the
lack of connection between their case and that of the
innocent employer they posit.
Taking their vagueness and overbreadth challenges
together, the Calimlims are arguing that nothing they said
or did to Martinez amounted to a threat. To the contrary,
they urge, they meant her no harm and were only telling
her these things in her best interest. Perhaps another jury
might have accepted this story, but the one that heard
12 Nos. 07-1112, 07-1113 & 07-1281
their case did not. The key to distinguishing this innocent
explanation from the facts of conviction, and the reason
why the record contains evidence supporting the jury’s
verdict, lies in part in what they did not tell her: that they
knew how to set in motion the process that might have
resulted in a legitimate green card (specifically through
an I-140 form and a Department of Labor certification
program). A statement is a threat if a reasonable person
would believe that the intended audience would receive
it as a threat, regardless of whether the statement was
intended to be carried out. See, e.g., United States v. Fuller,
387 F.3d 643, 646 (7th Cir. 2004) (threat to life of President);
United States v. Hart, 226 F.3d 602, 607 (7th Cir. 2000) (threat
of death with unknown object purported to be bomb
during bank robbery).
The evidence showed that the Calimlims intentionally
manipulated the situation so that Martinez would feel
compelled to remain. They kept her passport, never
admitted that they too were violating the law, and never
offered to try to regularize her presence in the United
States. Their vague warnings that someone might report
Martinez and their false statements that they were the only
ones who lawfully could employ her could reasonably be
viewed as a scheme to make her believe that she or her
family would be harmed if she tried to leave. That is all the
jury needed to convict. (Notably, the Calimlims did not
challenge the sufficiency of evidence supporting the
jury’s findings of intent.)
Almost as an aside, the Calimlims also argue that the
“abuse of law” here is not an “abuse” at all: Martinez was
Nos. 07-1112, 07-1113 & 07-1281 13
throughout the relevant time in the United States illegally
and was thus subject to deportation. (The Calimlims once
again conveniently overlook the fact that they themselves
were also breaking the law by employing Martinez. See 8
U.S.C. § 1324a(1).) But the immigration laws do not aim to
help employers retain secret employees by threats of
deportation, and so their “warnings” about the conse-
quences were directed to an end different from those
envisioned by the law and were thus an abuse of the legal
process. See Restatement (Second) of Torts § 682. The warn-
ings therefore fit within the scope of § 1589(3). In sum-
mary, as applied to the Calimlims’ case § 1589 is neither
vague nor overbroad.
B. Jury Instructions
The Calimlims also challenge the instructions given to
the jury on the forced labor count. They argue that the
district court’s instructions permitted them to be convicted
for innocent warnings. This challenge depends, however,
on the overbreadth argument that we have rejected. The
Calimlims do not argue that the district court misstated the
law—indeed, they concede that the court “fairly and
accurately” summarized the statute. At best, they seem to
be challenging the district court’s use of its discretion
in giving the instruction at all. The only reason they give
why this might be an abuse, however, is that the statute
permits conviction for innocent warnings—in short, it is
overbroad.
In fact, the district court advised the jury that
“[w]arnings of legitimate but adverse consequences or
14 Nos. 07-1112, 07-1113 & 07-1281
credible threats of deportation, standing alone, are not
sufficient to violate the forced labor statute.” The
Calimlims complain that the court failed to define “legiti-
mate but adverse consequences,” but, in the context of the
whole discussion, the meaning of that phrase is plain. This
instruction effectively alerted the jury to the scienter that
the Government had to prove beyond a reasonable doubt.
To the extent the Calimlims raise a challenge to the
sufficiency of the evidence supporting the court’s instruc-
tion to the jury, they argue that no reasonable jury
would have convicted the Calimlims on the charges
because there was no evidence of threats of violence or
physical coercion. No objection was raised on this point
at trial, so we review for plain error only.
We have already reviewed why this argument has no
merit. Section 1589 is not written in terms limited to overt
physical coercion, and we know that when Congress
amended the statute it expanded the definition of involun-
tary servitude to include nonphysical forms of coercion.
See Bradley, 390 F.3d at 156 (stating that Congress believed
Kozminski “mistakenly narrowed the definition of involun-
tary servitude by limiting it to physical coercion”). There
was no error, plain or otherwise, in a jury instruction based
on this understanding of the law. The jury instructions
properly recited the law, alerted the jury to the potential
complications involving scienter, and were based on
sufficient evidence. We will not quibble with a district
court’s wording as long as it fairly summarized the law
for the jury. See United States v. Bailey, 227 F.3d 792, 799
(7th Cir. 2000).
Nos. 07-1112, 07-1113 & 07-1281 15
C. Insufficient Evidence for Harboring Conviction
We next turn to the Calimlims’ challenge to the evidence
supporting their conviction for harboring an alien for
private financial gain under 8 U.S.C. § 1324(a)(1). The
statute provides for stricter punishments if the
harboring occurs “for the purpose of commercial advan-
tage or private financial gain.” 8 U.S.C. § 1324(a)(1)(B)(i). A
challenge to the sufficiency of the evidence for convic-
tion is reviewed “in the light most favorable to the govern-
ment,” United States v. Albarran, 233 F.3d 972, 975 (7th Cir.
2000); we uphold a conviction if “any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S.
307, 319 (1979).
The Calimlims argue that Congress intended to punish
smugglers and coyotes when it doubled the maximum
penalty for harboring aliens for private financial gain. They
portray themselves as innocent employers who simply
bargained for mutual advantage. They struck a fair deal
with Martinez for the value of her labor, they claim; they
even go so far as to say that she enjoyed a fine lifestyle
while she lived with them. Perhaps, they concede, they
did take some advantage of the fact that she was present in
the country illegally, but they blame the immigration
system, not themselves, for that inequity. This was a fair
deal, they conclude, from which they reaped no net
financial gain.
This argument makes no sense. The Calimlims must have
enjoyed some profit, at least on the margin, or else they
would not have gone to the trouble of having a live-in
16 Nos. 07-1112, 07-1113 & 07-1281
housekeeper whom they kept hidden, often through
extraordinary measures, from all outsiders. They argue
that the value of her labor was offset by 1) the price of her
wages, room, and board, and 2) the risk of harboring her,
and that the values all balance out. Even accepting this
implausible argument and granting that the Calimlims
might not have any reason to spend one more dollar on
Martinez, they would still have a motive to spend some
dollars on her: her labor came at a significantly lower
price than a comparable American housekeeper. This is
enough of a pecuniary motive by itself to prove financial
gain, as we observed in United States v. Fujii, 301 F.3d 535,
539-40 (7th Cir. 2002).
In effect, by adding the risk of harboring Martinez into
the equation the Calimlims are trying to pay in an illegal
currency. The whole point of criminalizing the act of
harboring for financial gain and punishing it more
strictly is to remove the financial incentive for doing so.
If the risk of harboring Martinez is removed from the
equation, the transaction becomes very imbalanced: the
value of Martinez’s labor, priced at a fair market value,
greatly outweighs the wages, room, and board the
Calimlims furnished for her. The law cannot take cogni-
zance of a portion of a transaction that it forbids.
Finally, the Calimlims’ argument ignores the circum-
stances surrounding the so-called bargain. They assert that
the bargain was fair and any advantage they enjoyed was
attributable to Martinez’s illegal status and the legal
hobbles it placed on her. What they ignore is that they
procured her illegal presence by manipulating her travel
Nos. 07-1112, 07-1113 & 07-1281 17
with Jovito Mendoza, confiscating her passport, and never
attempting to rectify her status. The Government even
showed that the Calimlims possessed the very forms that
would have permitted her to apply for legal status, but
they never filed the forms or even told Martinez about
them. The circumstances surrounding the imbalance in
bargaining power were not inevitable; they were con-
structs of the Calimlims’ own making that brought about
a slanted and inequitable bargain.
This court cannot stand back and dignify this as a fair
deal that resulted in no financial gain for the Calimlims. An
above-board arrangement with a housekeeper whose
immigration status was not in question would have cost
the Calimlims a great deal more money. (Indeed, they
could not have required one such person to work all of the
hours that Martinez did, and so a fair comparison to the
market would probably require looking at two or more
substitutes.) By procuring Martinez’s vulnerable status,
driving a hard bargain, and paying with an illegal cur-
rency, they received a manifest benefit at a drastically
reduced price. There was overwhelming evidence of
financial gain, and an attempt to characterize it as some-
thing different seems cynical at best and outrageous at
worst—and illegal in either case.
II
Although that disposes of the Calimlims’ appeal, there is
more to this case. At the sentencing phase, the Government
argued that the Calimlims’ offense level for purposes of the
Sentencing Guidelines should be increased under three
18 Nos. 07-1112, 07-1113 & 07-1281
separate sections: commitment of another felony during
the course of committing the crime of forced labor, U.S.S.G.
§ 2H4.1(b)(4); vulnerable victim, U.S.S.G. § 3A1.1(b)(1); and
use of a minor to commit a crime, U.S.S.G. § 3B1.4. The
district court rejected all three, and the Government has
cross-appealed on the ground that this was error and
that the overall sentences of 48 months each were unrea-
sonable.
A. “Any Other Felony” Enhancement
The Guideline that applies to forced labor convictions is
U.S.S.G. § 2H4.1, which covers “peonage, involuntary
servitude, and slave trade.” It establishes a base offense
level of 22, and identifies several “special offense character-
istics,” including one for another felony:
(b)(4) If any other felony offense was committed during
the commission of, or in connection with, the peonage
or involuntary servitude offense, increase to the greater
of:
(A) 2 plus the offense level as determined
above, . . . .
See also U.S.S.G. § 2H4.1(b)(4), appl. n. 2. The Calimlims
and the district court both took the position that all of their
convictions were covered by § 2H4.1 and thus that there
was no “other” felony offense that would support the
enhancement.
This argument overlooks entirely the actual offenses for
which the Calimlims were convicted: violations of § 1589
Nos. 07-1112, 07-1113 & 07-1281 19
(forced labor) and § 1324(a)(1) (harboring an alien for
private financial gain). The latter offense has its own
sentencing Guideline, U.S.S.G. § 2L1.1. It is therefore “an[ ]
other felony offense . . . other than an offense that is itself
covered by [§ 2H4.1].” U.S.S.G. § 2H4.1(b)(4), appl. n. 2.
The harboring conviction falls within the terms of
§ 2H4.1(b)(4) and should have triggered its application.
“The bar on double counting comes into play only if the
offense itself necessarily includes the same conduct as the
enhancement.” United States v. Senn, 129 F.3d 886, 897 (7th
Cir. 1997) (emphasis in original).
There is nothing artificial about treating forced labor and
harboring as two separate offenses. They are based on
different conduct, and neither necessarily encompasses the
other. See, e.g., Bradley, 390 F.3d at 148-50 (listing charges
of forced labor but not harboring of Jamaican nationals). To
state the obvious, even today, long after the passage of
the Thirteenth Amendment, it is possible to violate the
law by forcing an American into servitude just as one can
force an alien into servitude. In no sense does forced labor
necessarily imply that the victim is an alien. Similarly, it is
possible to harbor an alien for private financial gain
without forcing that person to work; the gain might come
from the use of valuable property that the alien has, or
even from a ransom. The enhancement called for by
§ 2H4.1(b)(4) should have been applied here.
B. “Vulnerable Victim” Enhancement
U.S.S.G. § 3A1.1(b)(1) requires a two-level increase if the
defendant “knew or should have known that a victim of
20 Nos. 07-1112, 07-1113 & 07-1281
the offense was a vulnerable victim.” The commentary
accompanying this section defines a “vulnerable victim” as
one “who is unusually vulnerable due to age, physical or
mental condition, or who is otherwise particularly suscep-
tible to the criminal conduct.” U.S.S.G. § 3A1.1, appl. n. 2.
The question here is whether the vulnerability of the
victim is to be measured against the general population
or against the group comprised of the likely victims of
this crime. If the former, Martinez is vulnerable, but if the
latter (as the district court thought), then she is no worse
off than any other victim of these crimes. In the latter case,
the vulnerability of the victim would already have been
built into the offense Guideline, and it would be double-
counting to apply the enhancement.
Section 2H4.1, which as we have just noted is the Guide-
line for the forced labor offense, does not say anything
about the vulnerability of the victim. The only adjustments
it requires are for death or serious bodily injury, use of a
dangerous weapon, a period greater than a year, and
commission of another felony. The Ninth Circuit has held
that the vulnerable victim adjustment is not part-and-
parcel of the offense Guideline. United States v. Veerapol, 312
F.3d 1128, 1132-33 (9th Cir. 2002). We agree with our
colleagues and find the Calimlims’ argument to the
contrary unpersuasive. The Calimlims assert, in essence,
that any victim of forced labor is by definition vulnerable,
and so a vulnerable-victim enhancement would be re-
dundant. This is not the case: with enough muscle, it
would be possible to coerce a perfectly able-bodied,
English-speaking, independent American citizen into
forced labor. The district court erred by failing to recog-
Nos. 07-1112, 07-1113 & 07-1281 21
nize that there are more ways to commit the forced
labor crime than the one the Calimlims chose.
The Calimlims also appeal to the Ninth Circuit’s decision
in United States v. Castañeda, 239 F.3d 978 (9th Cir. 2001),
which held that only certain victims of a Mann Act viola-
tion would qualify as unusually vulnerable before the
enhancement provided by U.S.S.G. § 3A1.1(b)(1) would
be justified. The Calimlims argue that the same logic
should apply to the forced labor statute: because all victims
of that crime are vulnerable to a certain degree (or else
no one could force them into servitude) only the subset
who are worse off than most would warrant the
vulnerable-victim enhancement.
In our view, this misinterprets Castañeda. Castañeda
differentiated between victims of the particular scheme (for
example, an offer of a bogus cure for cancer) and victims of
the general offense (for example, health-care fraud); it
permitted application of the enhancement when the
victim was vulnerable in a way typical of the special
scheme. See id. at 981 n.4. For example, somebody who
uses mail fraud to victimize the aged should be punished
more than a person who victimizes younger (and presum-
ably more capable) people: the law recognizes that preying
on the elderly is more culpable than many other instances
of mail fraud. Even though Martinez may not have been
especially vulnerable among the population of illegal
aliens, she was among the most vulnerable of the
broader group who are forced into labor. The Calimlims
victimized her by targeting her special vulnerability.
In Veerapol, on facts very similar to those before us, the
Ninth Circuit upheld the use of the vulnerable-victim
22 Nos. 07-1112, 07-1113 & 07-1281
enhancement. See 312 F.3d at 1133. The approach to the
enhancement taken by other circuits is consistent with that
in the Ninth. See generally, e.g., United States v. Zats, 298
F.3d 182 (3d Cir. 2002) (fraudulent debt collection
scheme); United States v. McCall, 174 F.3d 47 (2d Cir. 1998)
(embezzlement). We have described the key concern
behind the vulnerable-victim enhancement as the desire
to deter criminals from targeting certain groups by increas-
ing the penalties for doing so. See, e.g., United States v.
Newsom, 402 F.3d 780, 785 (7th Cir. 2005); United States v.
Grimes, 173 F.3d 634, 637 (7th Cir. 1999); United States v.
Lallemand, 989 F.2d 936, 940 (7th Cir. 1993). Lest there be
any doubt about our position on the question raised by
the Calimlims, we clarify today that where vulnerability
is not already accounted for in the Guidelines, we will
apply the vulnerable-victim enhancement when the
victim is a member of a group typically vulnerable to the
particular manifestation of the general offense committed
by the defendant, whether or not the victim is otherwise
unusually vulnerable. In this case, Martinez was a mem-
ber of a group typically targeted by those desiring forced
labor, but her group (illegal aliens) is only part of the
broader set of possible victims. She was therefore a vulner-
able victim for the purposes of U.S.S.G. § 3A1.1(b)(1). The
district court erred when it denied this enhancement.
C. “Use of Minor Children” Enhancement
Finally, U.S.S.G. § 3B1.4 requires a two-level enhance-
ment for using a minor to commit a crime. “Use” includes
“directing, commanding, encouraging, intimidating,
counseling, training, procuring, recruiting, or soliciting.”
Nos. 07-1112, 07-1113 & 07-1281 23
U.S.S.G. § 3B1.4, appl. n. 1. The district court thought that
the Calimlims’ minor children were not active and know-
ing cooperators in the scheme, but were rather innocent
dupes of their parents.
A legal error lies behind this finding. Whether the minor
understands what is going on is irrelevant: “The enhance-
ment in section 3B1.4 focuses on whether the defendant
used a minor in the commission of a crime, not whether the
minor knew that he was being used to commit a crime.”
United States v. Ramsey, 237 F.3d 853, 861 (7th Cir. 2001).
The district court erred when it relied on the children’s
(lack of) knowledge as the reason not to apply this en-
hancement.
The Calimlims’ discussion of United States v. Acosta, 474
F.3d 999 (7th Cir. 2007), is wide of the mark. In Acosta, this
court vacated the application of the enhancement because
the defendant did not personally use a minor in commit-
ting the crime, even though he was aware of the minor’s
participation. Id. at 1003. The emphasis there was on the
fact that the defendant did not personally solicit, encourage,
or otherwise facilitate the crime; someone else in the
conspiracy did. The Acosta court affirmed the defendant’s
conspiracy conviction, but it refused to enhance the
sentence based on use of the minor. Id. The Calimlims
frame this as a holding that the defendant must affirma-
tively use the child in order to warrant the enhancement.
They then leap to an equation of the term “affirmatively
use” with a requirement that the child know what is
going on. The one does not follow from the other. The
district court erred in not applying the enhancement, based
24 Nos. 07-1112, 07-1113 & 07-1281
on the ample evidence in the record that the Calimlims
used their children to help conceal Martinez and to keep
her in bondage all those years.
D. Reasonableness of Sentences
At this point, we do not need to explore the reasonable-
ness of the Calimlims’ sentences because a remand for a
proper Guidelines calculation is necessary in any event. See
United States v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006)
(“When a judge does not properly calculate a guidelines
sentence, our review for reasonableness is forestalled.”).
Once the proper range has been determined, rather
than thinking in terms of “departures” and “enhance-
ments,” the court should simply “decide whether to
impose a sentence within the range or outside it, by
reference to the factors set forth in 18 U.S.C. § 3553(a).” Id.
III
We A FFIRM the Calimlims’ convictions, but V ACATE their
sentences and R EMAND for resentencing in accordance
with this opinion.
8-15-08