United States v. Charles Kizer
517 F. App'x 415
6th Cir.2013Background
- Kizer enticed A.W., an 18-year-old crack addict, into prostitution with promises to feed her drug habit and profited from her proceeds.
- A.W. prostituted in Knoxville, Memphis, and West Memphis, Arkansas; she was kept under Kizer's control and supplied with crack.
- FBI testimony described Kizer's use of fear: an axe under the truck seat, threats of decapitation, and locking A.W. in his home with violence if she attempted to flee.
- A.W. called 911 on September 1, 2010; police arrested Kizer when he returned after forgetting his gun; recorded calls showed attempts to influence court testimony.
- Kizer was charged with two counts of sex trafficking by force, fraud, and coercion; three counts of interstate transportation for prostitution; and a forfeiture count; he pleaded guilty to one Mann Act count; others dismissed.
- Guidelines calculation: cross reference to 2G1.1 increased base from 14 to 30; 2A3.1(b)(1) added 4-level enhancement for aggravated sexual abuse; final adjusted offense level 40, Criminal History IV; range contemplated 360 months to life, but statutory max was 120 months.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process for sentencing findings | Kizer: preponderance standard insufficient for major guideline rise. | Kizer: Brika/McMillan permit no higher standard; Booker reasonable-sentence limit. | Preponderance standard upheld; sentence within statutory range was reasonable. |
| Double counting with cross reference and enhancement | Applying cross reference and 2A3.1 amounts to impermissible double counting. | Distinct conduct justifies both; not double counting under governing standards. | Not impermissible double counting; enhancements target distinct aspects of conduct. |
| Substantive reasonableness of the sentence | 120-month term is excessive given victim's background and mitigating factors. | Court appropriately weighed deterrence and public protection; within guidelines. | Sentence not substantively unreasonable; district court acted within discretion. |
Key Cases Cited
- McMillan v. Pennsylvania, 477 U.S. 79 (U.S. 1986) (preponderance standard applicable to sentencing factors, not elements)
- United States v. Brika, 487 F.3d 450 (6th Cir. 2007) (reaffirms Booker-era reasonableness and preponderance standard for sentencing)
- United States v. Graham, 275 F.3d 490 (6th Cir. 2001) (sentencing findings and standard of review in mixed questions of law and fact)
- United States v. Archdale, 229 F.3d 861 (9th Cir. 2000) (cross reference and enhancement can apply to distinct conduct)
- United States v. O’Brien, 130 S. Ct. 2169 (Supreme Court 2010) (addresses standard of proof; distinguished from cross-reference issues)