United States v. Tynisha Hornbuckle , 784 F.3d 549 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10541
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00327-
MCE-1
TYNISHA MARIE HORNBUCKLE,
AKA My Nookie, AKA Nene, AKA
No Feelings,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 12-10615
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00327-
MCE-2
TAMRELL RENA HORNBUCKLE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted
March 10, 2015—San Francisco, California
Filed April 21, 2015
2 UNITED STATES V. HORNBUCKLE
Before: William A. Fletcher, Andre M. Davis*,
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen
SUMMARY**
Criminal Law
The panel affirmed sentences for sex trafficking of
children under 18 U.S.C. § 1591.
The panel held that application of enhancement under
U.S.S.G. § 2G1.3(b)(4)(A) was not double counting because
“commission of a sex act or sexual contact” is not an element
of a conviction under § 1591.
The panel held that the district court properly applied an
enhancement under U.S.S.G. § 2G1.3(b)(2)(B) for undue
influence. The panel held that the record supports the district
court’s finding of undue influence for all three minors. The
panel joined several other circuits in holding that where the
record otherwise supports a district court’s factual finding of
undue influence, evidence of the minor victim’s willingness
is insufficient to compel reversal of the district court’s
finding.
*
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. HORNBUCKLE 3
COUNSEL
Bruce Locke (argued), Moss & Locke, Sacramento,
California, for Defendant-Appellant Tynisha Marie
Hornbuckle.
Erin Jolene Radekin (argued), Law Office of Erin Radekin,
Sacramento, California; Hayes H. Gable, III, Law Office of
Hayes H. Gable, III, Sacramento, California, for Defendant-
Appellant Tamrell Rena Hornbuckle.
Camil A. Skipper (argued), Assistant United States Attorney,
Appellate Chief; Benjamin B. Wagner, United States
Attorney; Kyle Reardon and Matthew C. Stegman, Assistant
United States Attorneys, Eastern District of California,
Sacramento, California, for Plaintiff-Appellee.
OPINION
CHRISTEN, Circuit Judge:
Tynisha and Tamrell Hornbuckle are sisters who each
pleaded guilty to two counts of sex trafficking of children
under 18 U.S.C. § 1591. They challenge their sentences in
these consolidated appeals. The district court held an
extensive evidentiary hearing and sentenced Tynisha to 188
months and Tamrell to 151 months in prison.1 The sentences
included enhancements under U.S.S.G. § 2G1.3(b)(4)(A),
because sex acts were actually committed by the minors, and
under U.S.S.G. § 2G1.3(b)(2)(B), for undue influence. The
1
For clarity, we use first names to identify the Hornbuckle family
members.
4 UNITED STATES V. HORNBUCKLE
sisters appeal the application of both enhancements. We
affirm.
BACKGROUND
I. Facts
From 2008 to 2011, Tynisha and Tamrell ran a
prostitution ring with the help of their siblings Latrelle and
Cherrelle Hornbuckle and their mother Tammy Brown.
Tynisha and Tamrell, who were then in their twenties, acted
as pimps who made money off adult and child prostitutes.
These appeals arise from their interactions with three
underage victims: P.H., who was 13 when she started
working for the Hornbuckles; A.Hi., who was approximately
15 or 16; and A.He., who was 17. Tynisha primarily
managed the underage prostitutes while Tamrell managed the
adults, but on occasion Tamrell also arranged “dates” for the
minors. The three homeless minors who are the subject of
this case all lived with the Hornbuckles at one point, and they
often performed sex acts for clients at Latrelle and Cherrelle’s
home and in Tammy’s garage.
P.H., A.Hi., and A.He. gave all of their earnings to
Tynisha and Tamrell,2 who imposed daily quotas on them.
A.He. had sex with ten to fifteen clients a day. Whenever the
victims said they did not want to work, Tynisha told them to
“[j]ust do a few” because they had “bills to pay.” The girls
generally got three to four hours of sleep per day because
they were “[a]lways working.”
2
A.He. initially split the money evenly with Tynisha, but that
arrangement lasted only a few days before Tynisha said that it was
“simpler” for her to take all the earnings.
UNITED STATES V. HORNBUCKLE 5
Tynisha hit, beat, choked, and kicked A.Hi. and P.H. for
“[a]nything and everything,” such as “acting out of line” or
dressing too slowly for work. P.H. in particular would get
“[a]nywhere from a slap to a full-on beating” if she did not
bring back enough money from a date. Tamrell also
“smacked” and beat P.H. The sisters had a practice of driving
to a dead-end street and having other girls hold the car doors
shut while they yelled at, and “severely beat,” A.Hi. and P.H.
Although Tynisha never actually hit A.He., she threatened to
“kill,” “beat,” and “punch” her. On one occasion, Tynisha
chased A.He. with a steak knife, promising to “beat” and
“stab” her.
On April 1, 2011, a confidential source informed the FBI
that the three victims were working for the Hornbuckles as
prostitutes. Two undercover FBI agents set up a date with
P.H., who was arrested after she agreed to the sex acts and
accepted money to perform them. Tamrell arranged the
transaction for P.H. and drove her to the motel. The FBI
subsequently questioned Tamrell, Cherrelle, Tynisha, and
A.He. A.He. corroborated the information supplied by the
confidential source. Later, an undercover agent set up a date
with A.Hi. and arrested her after she accepted payment to
perform a sex act.
After witnessing Tynisha, Tamrell, and Latrelle beat P.H.
viciously once more, A.He. agreed to assist in the FBI’s
investigation. In May 2011, she wore a wire and recorded
Tamrell (but not Tynisha) discussing the scope of the
prostitution ring, the violence inflicted on the victims, and the
FBI investigation generally. The FBI also set up a fake date
for A.He., from which Tamrell pocketed the earnings.
6 UNITED STATES V. HORNBUCKLE
In July 2011, Tynisha and Tamrell were indicted and
arrested on thirteen counts, ten of which were for sex
trafficking of children under 18 U.S.C. § 1591.3 They both
pleaded guilty to the two counts that pertained to the sex
trafficking of A.He. and A.Hi. In exchange, the Government
dropped the other charges.
II. Sentencing Proceedings
The Presentence Reports (“PSRs”) identified advisory
guidelines ranges of 151 to 188 months’ imprisonment for
3
18 U.S.C. § 1591(a) provides:
Whoever knowingly—
(1) in or affecting interstate or foreign commerce,
or within the special maritime and territorial
jurisdiction of the United States, recruits, entices,
harbors, transports, provides, obtains, or maintains
by any means a person; or
(2) benefits, financially or by receiving anything of
value, from participation in a venture which has
engaged in an act described in violation of
paragraph (1),
knowing, or in reckless disregard of the fact, that means
of force, threats of force, fraud, coercion described in
subsection (e)(2), or any combination of such means
will be used to cause the person to engage in a
commercial sex act, or that the person has not attained
the age of 18 years and will be caused to engage in a
commercial sex act, shall be punished as provided in
subsection (b).
UNITED STATES V. HORNBUCKLE 7
Tamrell and 188 to 235 months’ imprisonment for Tynisha.4
These ranges included: (1) a two-level enhancement under
U.S.S.G. § 2G1.3(b)(2)(B) for undue influence as applied to
two of the minors; and (2) a two-level enhancement under
U.S.S.G. § 2G1.3(b)(4)(A) for actual commission of sex acts
by all three minors. The Hornbuckles objected to the two
enhancements. They argued in the district court, as they do
on appeal, that applying § 2G1.2(b)(2)(B) was improper
because they did not unduly influence the minors to engage
in prostitution, and that applying § 2G1.3(b)(4)(A)
constituted double counting.
Following the parties’ arguments about the applicability
of these enhancements, the court heard testimony from three
witnesses: an adult prostitute who worked for the
Hornbuckles, the Government’s expert on prostitution
culture, and A.He.
The district court ruled that the § 2G1.3(b)(2)(B)
enhancement was appropriate because the Hornbuckles
exerted undue influence over the minors to encourage them
to engage in prostitution. Although the PSRs recommended
the enhancement only for A.He. and P.H., the district court
4
We deny Tynisha’s motion to strike the pages of the Government’s
brief that recite facts detailed in the PSRs, which she claims are not part
of the record. During the lengthy evidentiary hearing, the district court
expressly adopted the PSRs twice and determined their findings to be
correct. We have repeatedly held that such adoption is sufficient to make
PSR findings part of the record. See United States v. McClain, 30 F.3d
1172, 1174 (9th Cir. 1994); United States v. Rigby, 896 F.2d 392, 394 (9th
Cir. 1990).
8 UNITED STATES V. HORNBUCKLE
emphasized that it found undue influence for all three
victims.5
The court also accepted the recommendation to apply the
§ 2G1.3(b)(4)(A) enhancement, ruling there was no double
counting. The court concluded that a conviction under
18 U.S.C. § 1591 does not require commission of a sex act
because it can be based on an exchange of money in
anticipation of the sex act. The court adopted the PSRs’
recommendations and imposed sentences of 188 months for
Tynisha and 151 months for Tamrell.
The Hornbuckles timely appealed their sentences. We
have jurisdiction under 28 U.S.C. § 1291.
STANDARD OF REVIEW
“We review the district court’s interpretation of the
Sentencing Guidelines de novo . . . and the district court’s
factual findings for clear error.” United States v. Swank,
676 F.3d 919, 921 (9th Cir. 2012) (internal quotation marks
omitted). “We have previously noted an intracircuit conflict
as to whether the standard of review for application of the
Guidelines to the facts is de novo or abuse of discretion.” Id.at 921–22. We need not resolve that conflict here because as
in other cases, “the choice of standard . . . does not affect the
outcome of this case.” See id. at 922; United States v. Yip,
5
The PSRs did not recommend the undue influence enhancement for
A.Hi. because she submitted a statement claiming that the Hornbuckles
did not influence her to engage in prostitution. But evidence admitted at
the sentencing hearing established that A.Hi. was beaten by Tynisha, and
that she gave her earnings to the Hornbuckles.
UNITED STATES V. HORNBUCKLE 9
592 F.3d 1035, 1038 (9th Cir. 2010); United States v. Rivera,
527 F.3d 891, 908 (9th Cir. 2008).
ANALYSIS
I. The district court properly applied U.S.S.G.
§ 2G1.3(b)(4)(A).
Impermissible double counting occurs when a court
applies an enhancement for a necessary element of the
underlying conviction. See United States v. Smith, 719 F.3d
1120, 1123–25 (9th Cir. 2013). The Hornbuckles argue that
the district court improperly applied U.S.S.G.
§ 2G1.3(b)(4)(A) because a conviction for sex trafficking of
minors requires that the minors actually engaged in sex acts.
If that had been the case, we agree the district court would
have erred by applying this enhancement. But the district
court did not double count this factor, and its decision to
apply the enhancement was proper under either de novo or
abuse of discretion review.
U.S.S.G. § 2G1.3(b) provides for “Specific Offense
Characteristics” relating to crimes of “Promoting a
Commercial Sex Act or Prohibited Sexual Conduct with a
Minor.” Subsection (b)(4) provides: “If (A) the offense
involved the commission of a sex act or sexual contact; or
(B) subsection (a)(3) or (a)(4) applies and the offense
involved a commercial sex act, increase by 2 levels.”
(Emphasis added.) Case law makes clear that “commission
of a sex act or sexual contact” is not an element of a
10 UNITED STATES V. HORNBUCKLE
conviction under 18 U.S.C. § 1591. Thus, applying
subsection (b)(4)(A) did not constitute double counting.6
In United States v. Brooks, two appellants challenged the
sufficiency of the evidence for their sex trafficking
convictions under 18 U.S.C. § 1591(a). 610 F.3d 1186,
1196–97 (9th Cir. 2010). Even though one of the victims
never actually engaged in a sex act, we held that there was
sufficient evidence to support the convictions because “the
men had plans for [that victim] to be caused to engage in
prostitution in the future.” Id. at 1197. We clarified that a
conviction for sex trafficking of minors under 18 U.S.C.
§ 1591 does not require that the victim actually commit a sex
act:
N.K. was not in fact caused to engage in
prostitution. The jury, however, could infer
that N.K. did not engage in such acts simply
because she still was very affected by the
drugs she took in Phoenix. Further, as we
recently explained in another § 1591(a)
appeal,
[w]hen an act of Congress requires knowledge
of a future action, it does not require
knowledge in the sense of certainty as to a
6
The Hornbuckles correctly point out that in 2007, the Sentencing
Commission clarified that subsection (b)(4)(B) “does not apply if the
defendant is convicted under 18 U.S.C. § 1591” because such a conviction
“necessarily involves a commercial sex act.” But subsections (b)(4)(A)
and (b)(4)(B) of this enhancement are independent provisions connected
by the disjunctive “or.” The Sentencing Commission said nothing about
subsection (b)(4)(A), under which the district court applied the
enhancement here.
UNITED STATES V. HORNBUCKLE 11
future act. What the statute requires is that
the defendant know in the sense of being
aware of an established modus operandi that
will in the future coerce a prostitute to engage
in prostitution.
United States v. Todd, 584 F.3d 788, 792 (9th
Cir. 2009). This standard is satisfied here
even though N.K. did not ultimately engage in
any acts of prostitution.
Id. at 1197 n.4 (emphasis added).
Our sister circuits agree. In United States v. Willoughby,
the Sixth Circuit rejected the same argument the Hornbuckles
make here:
Willoughby argues that his § 1591(a)
conviction already took this aspect of his
conduct into account, because in his view the
commission of a sex act was an element of his
offense. But every circuit to have reached the
issue disagrees with him. The relevant
language in § 1591(a) requires that the
defendant knowingly take certain
actions—recruiting, transporting, or enticing,
among others—knowing that the victim “will
be caused to engage in a commercial sex act.”
18 U.S.C. § 1591(a). And “[t]he future verb
tense of the phrase ‘will be caused’—which
precedes ‘to engage in a commercial sex
act’—indicates that a sex act does not have to
occur to satisfy the elements of the child-sex-
trafficking offense. To conclude otherwise
12 UNITED STATES V. HORNBUCKLE
erases the meaning of ‘will be’ from the
statutory text.” United States v. Garcia-
Gonzalez, 714 F.3d 306, 312 (5th Cir. 2013).
Willoughby’s offense was complete when he
acted with the requisite knowledge—when he
dropped SW off at Tusin’s residence, for
example—and not at the moment of
penetration.
742 F.3d 229, 241 (6th Cir. 2014) (emphasis added) (citing
United States v. Jungers, 702 F.3d 1066, 1073–74 (8th Cir.
2013); Brooks, 610 F.3d at 1197 n.4); see also United States
v. Anderson, 560 F.3d 275, 283 (5th Cir. 2009) (holding that
enhancement for commission of sex acts did not constitute
double counting of 18 U.S.C. § 1591 conviction). Just as in
Willoughby and Anderson, applying U.S.S.G.
§ 2G1.3(b)(4)(A) here was not double counting because
“commission of a sex act or sexual contact” is not an element
of the Hornbuckles’ convictions for sex trafficking of
children under 18 U.S.C. § 1591.
II. The district court properly applied U.S.S.G.
§ 2G1.3(b)(2)(B).
A. The record supports the district court’s finding of
undue influence for all three minors.
U.S.S.G. § 2G1.3(b)(2)(B) provides: “If . . . a participant
otherwise unduly influenced a minor to engage in prohibited
sexual conduct, increase by 2 levels.” The commentary to
this enhancement advises: “In determining whether
subsection (b)(2)(B) applies, the court should closely consider
the facts of the case to determine whether a participant’s
influence over the minor compromised the voluntariness of
UNITED STATES V. HORNBUCKLE 13
the minor’s behavior. The voluntariness of the minor’s
behavior may be compromised without prohibited sexual
conduct occurring.” U.S. Sentencing Guidelines Manual
§ 2G1.3 cmt. n.3(B) (2014). Because the record easily
supports the district court’s finding of undue influence for all
three minor victims, the application of this enhancement was
proper under both de novo and abuse of discretion review.
The Hornbuckles argue that the district court found undue
influence because minors are incapable of consenting to sex
as a matter of law, and that under this faulty reasoning, the
undue influence enhancement will always apply when a
minor is caused to engage in prostitution. This claim
misrepresents the record. Although the district court did
make a passing analogy to statutory rape, that analogy was
not the basis for the court’s undue influence finding. The
district court made its finding after conducting an evidentiary
hearing and carefully considering the evidence of the
Hornbuckles’ violence, intimidation, and control:
I want the record to reflect that although there
were pleas, there was a . . . rather extensive
and detailed evidentiary hearing that this
Court sat through, including the videotape that
was alluded to . . . , and there were very
compelling witnesses who testified during the
course of that evidentiary hearing.
The one thing that I will say, which will
apply to both Tamrell Hornbuckle and
Tynisha Hornbuckle, is that this was an
extremely involved and, to a certain extent,
complex organization that preyed upon not
just young girls or non-adults, but extremely
14 UNITED STATES V. HORNBUCKLE
young, going as far as 13 years old, and that’s
an extremely troubling situation. It did
involve coercion. It did involve physical
altercations. It involved the use of money. It
involved a lot of different things that were
here.
The record contains abundant evidence of undue
influence. At the evidentiary hearing, both the adult
prostitute and A.He. testified extensively to Tynisha’s
violence and anger. A.He. stated that she felt she had no
options because she had nowhere to go, and that she was
terrified of Tynisha. Aside from the evidence of violence,
A.He. also indicated that life was “[v]ery stressful,” the
“whole family pressur[ed]” the minors, and not working was
never an option.
There is ample evidence that Tynisha forced all three
victims to work when they did not want to and controlled
every aspect of the minors’ lives, including time and place of
work, choice of clothing, and access to money and food. The
Government’s expert testified that in the prostitution world,
pimps maintain control by guarding access to money, shelter,
food, clothing, and drugs. He also stated that although often
only “one girl is the main victim of the violence, . . . the other
girls see it.” This is an effective method of controlling the
prostitutes who witness the violence. The techniques are
particularly effective for “underage girls [because] it’s very
difficult for these girls to get away and leave.”
We further note that the record supports the finding of
undue influence for both Tynisha and Tamrell. Although
there is more evidence of Tynisha’s violence, there is also
evidence of Tamrell abusing the minors and pressuring them
UNITED STATES V. HORNBUCKLE 15
to work. However, the Sentencing Guidelines allow
enhancements to apply “in the case of a jointly undertaken
criminal activity . . . , [to] all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). Tamrell
worked with Tynisha to prostitute the victims and could have
reasonably foreseen Tynisha’s acts of undue influence.
Further, the record contains evidence that Tamrell exerted
undue influence on the minors herself. The district court
therefore properly applied U.S.S.G. § 2G1.3(b)(2)(B) to her
sentence.
B. Evidence of the minors’ willingness does not
compel reversal of the district court’s finding.
The Hornbuckles argue that the district court wrongly
found undue influence because all three minors had
previously engaged in prostitution voluntarily. In the
Hornbuckles’ view, this history proves they did not unduly
influence the victims. We reject this argument as a matter of
law and join several other circuits in holding that where the
record otherwise supports a district court’s factual finding of
undue influence, evidence of the minor victim’s willingness
is insufficient to compel reversal.
Our circuit does not currently have controlling case law
on the issue, but five other circuits have decided the question.
These circuits have unanimously concluded that evidence of
a victim’s willingness is insufficient to compel a finding of
no undue influence. See United States v. Reid, 751 F.3d 763,
768 (6th Cir. 2014) (“It makes no difference that J.H. ‘was
not handcuffed to a bed’ or ‘kidnapped off the street.’ The
undue-influence enhancement ‘is not limited to force, fraud,
or coercion.’ It also reaches ‘manipulating’ and ‘preying
16 UNITED STATES V. HORNBUCKLE
upon’ a vulnerable victim—just what we have here.” (internal
citations omitted)); United States v. Watkins, 667 F.3d 254,
265 (2d Cir. 2012) (affirming finding of undue influence, and
observing “that [the victim] actively was pursuing a
relationship with [the defendant] does not require a different
conclusion”); United States v. Hagen, 641 F.3d 268, 271 (8th
Cir. 2011) (holding finding not clearly erroneous, despite
claim that “victim traveled freely with defendant”); United
States v. Miller, 601 F.3d 734, 737–38 (7th Cir. 2010)
(evidence of victim’s willingness did not render finding of
undue influence clearly erroneous); United States v. Lay,
583 F.3d 436, 439 (6th Cir. 2009) (holding that the finding of
undue influence was not clearly erroneous, and observing that
evidence of minor’s willingness was “consistent with a victim
who has been influenced by a sexual predator”); Anderson,
560 F.3d at 283 (finding of undue influence not clearly
erroneous even though victims began engaging in prostitution
before they met defendant because evidence showed that the
victims were afraid to leave him).
The views of these other circuits are entirely consistent
with our decision in Brooks, where we touched upon a related
issue. Brooks involved two underage girls who ran away
from a residential treatment center. 610 F.3d at 1191. They
eventually met Brooks, a pimp. Id. at 1192. Knowing that
they were minors, Brooks enlisted the girls to work for him
as prostitutes. Id. Brooks was convicted for sex trafficking
of minors under 18 U.S.C. § 1591. Id. at 1192–93. On
appeal, Brooks challenged his sentence, arguing that the
district court erred by applying the U.S.S.G. § 2G1.3(b)(2)(B)
enhancement because there was evidence the girls had
previously engaged in noncommercial sex. Id. at 1199. We
rejected that argument:
UNITED STATES V. HORNBUCKLE 17
“[T]he victim’s willingness to engage in
sexual activity is irrelevant, in much the same
way that a minor’s consent to sexual activity
does not mitigate the offense of statutory rape
or child molestation.” Nothing in the record
suggests that the girls were inclined to engage
in commercial sex acts before they met
Brooks and Fields, and counsel’s suggestion
at oral argument that the girls were “giving it
away” is not well taken.
. . . [T]he record supports the conclusion
that both Fields and Brooks unduly influenced
the girls to engage in prostitution.
Id. (alteration and citation omitted) (first emphasis added)
(quoting United States v. Dhingra, 371 F.3d 557, 567–68
(9th Cir. 2004)). We emphasized that there was evidence of
undue influence because “the girls had no money, no job and,
as runaways, nowhere to live.” Id.The Hornbuckles correctly argue that Brooks is
distinguishable because “[n]either of the girls had engaged in
prostitution before meeting Brooks.” See id. (emphasis
added). We agree that Brooks is not directly on point. It
established that the victims’ prior voluntary engagement in
noncommercial sex did not preclude a finding that defendants
unduly influenced them to engage in commercial sex. Id.Here, the question is whether the minors’ prior voluntary
engagement in commercial sex precluded a finding that the
Hornbuckles unduly influenced them to engage in
commercial sex. Our court has yet to address this question.
Having considered the parties’ arguments, we now hold that
a minor’s prior, voluntary acts of prostitution do not preclude
18 UNITED STATES V. HORNBUCKLE
a finding that she or he was unduly influenced to engage in
subsequent acts of prostitution. We emphasize that the
finding of undue influence is a fact-based inquiry in which we
accord great deference to the district court.
Here, all three victims engaged in prostitution before
meeting the Hornbuckles, and some of them at least began
working for the Hornbuckles voluntarily. But as in Anderson,
this does not change the fact that once the victims began
working for the Hornbuckles, they were forced to meet daily
quotas, subjected to ongoing physical and verbal abuse,
pressured to work when they did not want to, and unable to
leave due to fear and lack of resources. See 560 F.3d at 283.
The homeless victims in this case depended on the
Hornbuckles for food, clothing, money, and housing. See
Brooks, 610 F.3d at 1199 (“[T]he girls had no money, no job
and, as runaways, nowhere to live.”). This record supports
the district court’s conclusion that the Hornbuckles unduly
influenced the victims to engage in prostitution.7 The
victims’ previous involvement in prostitution does not
overcome the record’s abundant showing of undue influence,
7
The Hornbuckles’ reliance on United States v. Myers, 481 F.3d 1107(8th Cir. 2007), is unavailing. In Myers, a 15-year-old victim fell in love
with the 37-year-old defendant and ran away with him; the two engaged
in numerous sex acts together. Id. at 1109. The victim testified that she
engaged in the sex acts voluntarily. Id. at 1109, 1112. Myers is
distinguishable because the district court found no undue influence. Id. at
1112. Reviewing for clear error, the Eighth Circuit affirmed the district
court’s factual finding because it was supported by the record. Id. Myers
is entirely consistent with our holding. As Lay explains, the standard of
review makes a difference: “Where evidence could be construed both for
and against an argument that the minor was not influenced, the appellate
court deferred to the district court’s factual findings on the question.”
583 F.3d at 446 (discussing Myers).
UNITED STATES V. HORNBUCKLE 19
and it does not justify reversal under the clear error standard
of review. See Lay, 583 F.3d at 446.
CONCLUSION
We AFFIRM the sentences imposed by the district court.
AFFIRMED.