United States v. Maurice Smith , 719 F.3d 1120 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 11-50549
Plaintiff-Appellee,
D.C. No.
v. 3:11-cr-00471-
BEN-1
MAURICE LEROME SMITH ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted February 7, 2013*
Pasadena, California
Filed June 26, 2013
Before: Consuelo M. Callahan, Sandra S. Ikuta,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Ikuta
*
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
2 UNITED STATES V . SMITH
SUMMARY**
Criminal Law
The panel affirmed a sentence imposed in connection with
a conviction for sex trafficking of children by force, fraud, or
coercion under 18 U.S.C. § 1591(a)(1) and (b)(1).
The panel rejected the defendant’s contention that an
enhancement for exerting undue influence on a minor under
U.S.S.G. § 2G1.3(b)(2)(B) was impermissible double-
counting, where the district court calculated a base offense
level under U.S.S.G. § 2G3.1(a)(1) for the defendant’s
violation of § 1591(b)(1), which has an element that the
defendant used “force, fraud, or coercion.”
The panel also rejected the defendant’s challenge to the
district court’s imposition of an enhancement for an
organizing role under U.S.S.G. § 3B1.1(c). The panel
reasoned that a woman who knowingly abetted the
defendant’s child sex trafficking offense qualified as a
“participant” under § 3B1.1, and the defendant was therefore
responsible for “organizing” her for the purpose of carrying
out that criminal act.
**
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 . SMITH 3
COUNSEL
John Lanahan, San Diego, California, for Defendant-
Appellant.
Laura E. Duffy, United States Attorney; Bruce R. Castetter
and Alessandra P. Serano, Assistant United States Attorneys,
San Diego, California, for Plaintiff-Appellee.
OPINION
IKUTA, Circuit Judge:
Maurice Lerome Smith appeals several sentencing
enhancements that he received in connection with his
conviction for sex trafficking of children by force, fraud, or
coercion under 18 U.S.C. § 1591(a) and (b)(1). We affirm.
I
Smith was the owner of a San Diego-area window
washing company. But for many years, he had also been
involved in a much darker business: running a prostitution
ring. In October 2009, a 17-year-old girl named M.S.
contacted Smith by email, looking for a job. M.S. was
homeless and living in a tent behind a motorcycle junkyard
where she worked. M.S. knew Smith owned a window
washing company, but suspected that he was also involved in
some kind of “hustle,” such as selling drugs or fake purses.
M.S. wanted to participate in Smith’s hustle, and after
meeting Smith for coffee several times, began working for his
window washing company. M.S. told Smith she was 17
because he needed to know her age to get a work permit.
4 UNITED STATES V . SMITH
Several months later, in January 2010, M.S. moved in
with Smith and began having sexual relations with him.
Shortly thereafter, Smith brought a woman named Michelle
back to the house, who asked about M.S.’s age, pointedly
commenting on how young she looked. In reaction to
Michelle’s question, Smith punched Michelle in the face,
knocking her unconscious. M.S. then learned that Smith was
a pimp. Smith told M.S., “Bitch, I own you,” and
immediately forced her to work as a prostitute in his ring.
Smith had Michelle train and accompany M.S. on her
initial assignments to San Diego hotels, telling M.S. that
Michelle’s “got this, she’ll show you, she’s been doing it a
really long time.” Michelle subsequently accompanied M.S.
to hotels and posted some internet ads for her. Smith had
several other women working as prostitutes for him at that
time, but Michelle was his “bottom bitch,” defined by a
government expert as the pimp’s most trusted prostitute,
responsible for recruiting, collecting money, and possibly
disciplining other prostitutes.
Smith regularly beat and threatened M.S. from February
2010 onward, and M.S. tried to leave him five or six times.
Whenever M.S. tried to leave, Smith’s tactics varied between
cajoling her to stay, using statements like “no, baby, I love
you, don’t leave, you don’t need to leave, we can work this
out, it’s not that big of a deal,” to threatening her, using
statements like “bitch, you ain’t going nowhere.” If M.S.
pushed the issue, “there were physical altercations.”
Although Smith did let M.S. go in July 2010, the reprieve was
short-lived. In September 2010, Smith saw M.S. walking on
the street and demanded that she get into his car or she would
be “in pieces in the trunk.” Shortly after Smith forced M.S.
to resume working as a prostitute for him, however, M.S.
UNITED STATES V . SMITH 5
started a noisy dispute with a client in hopes that he would
call the police. The client did so, and once the police arrived,
M.S. told them she had been forced to work for Smith.
After his arrest, indictment and trial, Smith was convicted
by a jury of sex trafficking of children by force, fraud, or
coercion, in violation of 18 U.S.C. § 1591(a) and (b)(1).1 In
answering a special interrogatory on the verdict form, the jury
found that Smith “knew that force, fraud, or coercion would
be used to cause the person to engage in a commercial sex
act,” and that he “knew, or was in reckless disregard, that a
person who had not attained the age of 18 years would be
caused to engage in a commercial sex act.”2
1
18 U.S.C. § 1591(a) provides that “[w]hoever knowingly – (1) in or
affecting interstate commerce . . . 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 . . . 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).”
18 U .S.C. § 1591(b) provides that “[t]he punishment for an offense
under subsection (a) is – (1) if the offense was effected by means of force,
threats of force, fraud, or coercion . . . or by any combination of such
means . . . by a fine under this title and imprisonment for any term of years
not less than 15 or for life; or (2) if the offense was not so effected, and
the person recruited, enticed, harbored, transported, provided, or obtained
had attained the age of 14 years but had not attained the age of 18 years
at the time of such offense, by a fine under this title and imprisonment for
not less than 10 years or for life.”
2
Smith was also charged and convicted for being a felon in possession
of a firearm, which is not relevant to this appeal.
6 UNITED STATES V . SMITH
The pre-sentence report identified Smith’s base offense
level as 34, as prescribed by § 2G1.3(a)(1) of the Sentencing
Guidelines for violations of 18 U.S.C. § 1591(b)(1).3 It also
recommended a two-level enhancement under U.S.S.G.
§ 2G1.3(b)(2)(B) for exerting undue influence on a minor,
and recommended a two-level enhancement under U.S.S.G.
§ 3B1.1(c) for an organizing role. Smith contested both
proposed sentencing enhancements, arguing that the
§ 2G1.3(b)(2)(B) enhancement was duplicative of the
elements of his conviction, and that there was no basis for the
§ 3B1.1(c) enhancement because he did not supervise or
organize anyone but M.S. The district court rejected Smith’s
objections, stating that “[t]here is no question that you used
undue influence. I heard the victim testify. And there is no
question about your role in this offense. It is pretty obvious
that, sir, you have been involved in this activity for a long,
long time.” The court sentenced Smith to 360 months’
imprisonment, followed by five years’ supervised release.
Smith timely appealed.
II
In determining whether the district court committed
procedural error, we review the district court’s interpretation
of the Sentencing Guidelines de novo and its factual findings
for clear error. See United States v. Swank, 676 F.3d 919,
921 (9th Cir. 2012).4
3
U.S.S.G. § 2G1.3(a)(1) provides for a base offense level of 34 “if the
defendant was convicted under 18 U.S.C. § 1591(b)(1).”
4
There is “an intracircuit conflict as to whether the standard of review
for application of the Guidelines to the facts is de novo or abuse of
UNITED STATES V . SMITH 7
A
We begin with Smith’s challenge to the enhancement for
undue influence under § 2G1.3(b)(2)(B). This section
provides for a two-level upward adjustment if a participant
“unduly influenced a minor to engage in prohibited sexual
conduct.” Id. Smith argues that this two-level increase for
undue influence under § 2G1.3(b)(2)(B) was impermissible
double-counting because the court calculated a base offense
level of 34 under § 2G1.3(a)(1) for his violation of
§ 1591(b)(1), which has as an element that the defendant used
“force, fraud, or coercion.” Because a person using “force,
fraud, or coercion” against a minor would necessarily have
“unduly influenced” the minor, Smith asserts, the
§ 2G1.3(b)(2)(B) enhancement impermissibly punished him
for conduct already included in the base offense level.
As a general rule, it is appropriate for a court to consider
all applicable Guidelines provisions in calculating the
guidelines range for an offense. In particular, the Sentencing
Guidelines contemplate that courts will apply all applicable
specific offense characteristics to enhance the base offense
level. See § 1B1.1(a)(2); see also United States v. Williams,
693 F.3d 1067, 1074 (9th Cir. 2012). Indeed, the Guidelines
instructions direct a court to apply provisions even from
different chapters of the Guidelines Manual in calculating the
points applicable to a single offense, because “[a]bsent an
instruction to the contrary, enhancements under Chapter Two,
adjustments under Chapter Three, and determinations under
Chapter Four are to be applied cumulatively,” and “may be
triggered by the same conduct.” § 1B1.1 cmt. 4(B).
discretion,” see Swank, 676 F.3d at 921–22, but this standard of review is
not at issue here.
8 UNITED STATES V . SMITH
In accord with these instructions, we have long held that
“the Sentencing Commission understands double counting
and ‘expressly forbids it where it is not intended.’” United
States v. Rosas, 615 F.3d 1058, 1065 (9th Cir. 2010) (quoting
United States v. Reese, 2 F.3d 870, 894 (9th Cir. 1993)); see
also United States v. Vizcarra, 668 F.3d 516, 518 (7th Cir.
2012) (under § 1B1.1 cmt. 4(B), double counting is the
“default rule”). As the Guidelines Manual demonstrates, the
Commission has in fact done this. Within any offense
guideline, for example, if a single specific offense
characteristic subsection lists alternative adjustments, district
courts are to pick “only the one that best describes the
conduct.” § 1B1.1 cmt. 4(B). The Guidelines Manual also
spells out numerous instances in which a particular provision
should not be applied to the same conduct as another
provision. See Vizcarra, 668 F.3d at 521.
We have also inferred that the Commission would not
intend courts to apply a Guidelines provision that would
“increase a defendant’s punishment on account of a kind of
harm that has already been fully accounted for by application
of another part of the Guidelines.” United States v. Holt,
510 F.3d 1007, 1011 (9th Cir. 2007). However, “when each
invocation of the behavior serves a unique purpose under the
Guidelines,” we conclude that the Commission “authorized
and intended” the cumulative application of both provisions.
Id.; see, e.g., United States v. Stoterau, 524 F.3d 988, 1001
(9th Cir. 2008) (applying two enhancements to same conduct
permissible because they account for “different aspect of the
harms” caused by the defendant’s conduct); United States v.
Thornton, 511 F.3d 1221, 1228 (9th Cir. 2008) (applying two
enhancements to same conduct permissible because each
“stemmed from separate concerns”).
UNITED STATES V . SMITH 9
We have routinely concluded that two Guidelines
provisions serve unique purposes when applied
cumulatively.5 In United States v. Wright, for instance, we
considered whether it was permissible to apply both an
adjustment for a vulnerable victim under 12 years old and an
enhancement for the same victim’s extreme youth and small
physical size. 373 F.3d 935, 942–43 (9th Cir. 2004).
Because the enhancement for the victim’s extreme youth and
small physical size addressed characteristics such as an
inability to communicate, an inability to walk, and increased
pain upon sexual penetration that “correlate with age, but are
not necessarily related to age,” we concluded that the two
provisions served unique purposes, and therefore both could
be applied to a defendant whose victim was his 11-month old
son. Id. at 943; see also Holt, 510 F.3d at 1011 (citing
Wright, 373 F.3d at 943–44). Similarly, in Williams, we
considered whether a base offense level that deals with
“offenses of extortion by force, threat of force, or serious
damage” was duplicative of an enhancement for a crime that
“involved an express or implied threat of death, bodily injury,
or kidnapping.” 693 F.3d at 1074. Because it was possible
to engage in a crime involving force, such as a crime resulting
in damage to property, without being subject to the
enhancement, we held that applying both provisions was
5
See, e.g., Williams, 693 F.3d at 1074; United States v. Lynn, 636 F.3d
1127, 1138 (9th Cir. 2011); United States v. Lindsey, 634 F.3d 541, 556
(9th Cir. 2011), cert. denied, 131 S. Ct. 2475, (2011); United States v.
Albritton, 622 F.3d 1104, 1108 n.4 (9th Cir. 2010); United States v.
Gallegos, 613 F.3d 1211, 1216 (9th Cir. 2010); United States v. Laurienti,
611 F.3d 530, 554 (9th Cir. 2010); United States v. Pham, 545 F.3d 712,
718 (9th Cir. 2008); Stoterau, 524 F.3d at 1001; Holt, 510 F.3d at 1011;
Thornton, 511 F.3d at 1228; United States v. Cabaccang, 481 F.3d 1176,
1186 (9th Cir. 2007); United States v. Wright, 373 F.3d 935, 944 (9th Cir.
2004).
10 UNITED STATES V . SMITH
permissible. Id.; see also United States v. Laurienti, 611 F.3d
530, 555 (9th Cir. 2010) (because base offense level did not
“necessarily include” the conduct for which defendant
received an enhancement, there was no impermissible double
counting). As these cases illustrate, we may infer that two
provisions do not serve unique purposes under the
Guidelines, and that the Commission did not intend them to
be applied cumulatively, only when the provisions are co-
extensive or one provision entirely subsumes the other.
This precedent squarely forecloses Smith’s claim that the
district court engaged in impermissible double counting.
Because having “undue influence” on a victim under
§ 2G1.3(b)(2)(B) may involve acts that do not constitute
“force, fraud, or coercion” encompassed in § 2G1.3(a)(1), the
two provisions serve unique purposes under the Guidelines
and may both be applied to the same conduct. Here, the
district court could reasonably determine that Smith “unduly
influenced a minor to engage in prohibited sexual conduct,”
§ 2G1.3(b)(2), by preying on M.S.’s vulnerability. Smith
took steps aimed at making M.S. dependent on him: knowing
she was homeless and lacking family support or financial
resources, he invited her to move in with him, gave her a job,
and began a sexual relationship with her. These predatory
acts compromised the voluntariness of her ability to resist
Smith’s demands that she work as a prostitute for him. See
United States v. Brooks, 610 F.3d 1186, 1199 (9th Cir. 2010);
see also § 2G1.3 cmt. 3(B) (“Undue influence” is defined as
activity that “compromise[s] the voluntariness of the minor’s
behavior”). Yet, these acts do not amount to “force” or
UNITED STATES V . SMITH 11
“fraud.”6 See Webster’s Third New International Dictionary
887, 904 (2002) (defining “force” as “violence or such threat
or display of physical aggression toward a person as
reasonably inspires fear of pain, bodily harm, or death,” and
defining “fraud” as “an instance or an act of trickery or deceit
esp[ecially] when involving misrepresentation.”). Nor do
such acts amount to “coercion” as defined in § 1591. See
18 U.S.C. § 1591(e)(2) (defining “coercion” to mean “(A)
threats of serious harm to or physical restraint against any
person; (B) any scheme, plan, or pattern intended to cause a
person to believe that failure to perform an act would result
in serious harm to or physical restraint against any person; or
(C) the abuse or threatened abuse of law or the legal
process”).
Accordingly, we conclude that the district court did not
err in applying a two-point enhancement for “undue
influence” under § 2G1.3(b)(2) when calculating Smith’s
guidelines range.
B
We now turn to Smith’s claim that the district court erred
in imposing an enhancement under § 3B1.1(c). Under
§ 3B1.1(c), a two-level upward adjustment is warranted if the
defendant is an “organizer, leader, manager, or supervisor in
any criminal activity.” The notes to § 3B1.1(c) provide that
a defendant must have overseen “one or more other
participants” to qualify for the upward adjustment, see
§ 3B1.1 cmt. 2, and define “participant” as “a person who is
6
Because § 1591 does not define “force” and “fraud,” we rely on those
terms’ ordinary dictionary meaning. In re Roman Catholic Archbishop of
Portland in Oregon, 661 F.3d 417, 432 (9th Cir. 2011).
12 UNITED STATES V . SMITH
criminally responsible for the commission of the offense, but
need not have been convicted.” Id. Smith argues that
imposing this enhancement was improper because there were
no participants in the particular criminal activity at issue, sex
trafficking of children. According to Smith, M.S. could not
be a participant, because his conviction was based on the
government’s theory that M.S. was the sole victim of the
underlying § 1591 offense, and a victim cannot also be a
participant. Smith also contends that any participant would
have to be a minor, given the nature of the underlying
offense.
We have held that “[a] court may impose this [§ 3B1.1(c)]
enhancement if there is evidence that the defendant exercised
some control over others involved in the commission of the
offense or was responsible for organizing others for the
purpose of carrying out the crime.” United States v. Whitney,
673 F.3d 965, 975 (9th Cir. 2012) (internal quotation marks
omitted). Any person who knowingly abets the defendant’s
conduct qualifies as a “participant.” See United States v.
Cyphers, 130 F.3d 1361, 1363 (9th Cir. 1997); see also
United States v. Bisong, 645 F.3d 384, 397–98 (D.C. Cir.
2011).
There was ample evidence before the district court that
Michelle knowingly abetted Smith’s § 1591 offense. It is
clear that Smith assigned Michelle, his “bottom bitch,” to
groom M.S. for her prostitution responsibilities, and that
Michelle undertook a number of steps in doing so. Under
Cyphers, it is immaterial that Michelle did not herself commit
the same underlying offense as Smith, so long as she was a
knowing accessory to his crime. 130 F.3d at 1363–64. Nor
was it necessary for the government to prove that Michelle
was also coerced by Smith, so long as she “knew and
UNITED STATES V . SMITH 13
participated in the [illegal] practices at the direction of the
defendant,” id. at 1363, which was easily established by
M.S.’s testimony. Because Michelle knowingly abetted
Smith’s child sex trafficking offense, she qualified as a
“participant” under § 3B1.1, and therefore Smith was
“responsible for organizing [Michelle] for the purpose of
carrying out” that criminal act. Whitney, 673 F.3d at 975.
Accordingly, the district court did not err in imposing the
two-level adjustment under § 3B1.1(c).7
AFFIRMED.
7
W e also reject Smith’s argument that the district court erred in refusing
to hold an evidentiary hearing to resolve Smith’s challenges to M.S.’s
testimony included in the pre-sentence report. The district court reviewed
and acknowledged these factual objections during the sentencing hearing,
and clearly rejected them by ruling that M.S.’s testimony was “truthful
and honest,” thus fulfilling its obligations under Federal Rule of Criminal
Procedure 32(i)(3)(B). Likewise, the district court complied with Rule
32(i)(3)(B) by ruling that the challenged statements of one of Smith’s
prostitutes who spoke at the sentencing hearing but not under oath would
have no effect on his sentencing decision.