*1 application any Supreme Court to the re- sonable at 608-09. As Id. challenge.” holding of which we are aware. two, they their admissions maining “ obligated impartial’ ‘fair and not be could habeas is judgment granting relief or peremptory use a counsel [defense] REVERSED, judgment of and a dismissal failure challenge do] ... [and for-cause RENDERED in favor of state. performance so was deficient “Moreover,” Id. at 610. [Washington ].” reasoned, ex- post-hoc counsel’s court per- rehabilitate
planation “fail[ed] any suggestion of and “laek[ed]
formance” using peremptory strategy'for not
a'trial ju- challenges biased [the on
or for-cause light the statements of “In Id. rors.]” America, UNITED STATES explanation and absent some jurors] [the Plaintiff-Appellee, we consider jury, them on the keeping peremptory failure to use a counsel’s challenge ... to be constitution- for-cause GARCIA-GONZALEZ, Beleal added). (emphasis Id. ally deficient.” Defendant-Appellant. rejected unpersuasive as court also 11-41097. No. explanations of alternative the state’s at 610-11. potential strategy. Id. counsel’s Appeals, United States Court Fifth Circuit. counsel, By implication,-trial mak 17, 2013. April decision, a reasonable tactical could ing juror actually an biased with elect to seat rendering IAC.10 That is even more
out
true, then, only impli the juror where was biased,
edly personally by was known fair,
counsel, thought and where who her challenge, a attempted for-cause
counsel forced whether to
but then was to decide
preserve challenge court had no Texas at
ever used to overturn a conviction jury. on the allowing Republican
cost of
A on “conscious and informed decision trial strategy be the basis for
tactics cannot
constitutionally. it is so ill unless [IAC] permeates it the entire trial
chosen Virgil, 446
with obvious unfairness.” F.3d
at The state conclusion—that courts’ Wyatt counsels’ decision to seat
trial did permeate
not the entire trial with obvious not an contrary
unfairness—is to or unrea- Torres, 10. Cf, e.g., Fed.Appx. strategy); Seigfried, based on trial 372 Fed. (holding potentially (same). that the Appx. failure to strike at 540-41 juror was not where decision biased IAC *4 Lambros, Depart-
Demetra Daniel U.S. Justice, Division, ment of Criminal Wash- DC, Gowie, Ann Assistant ington, Renata Office, Attоrney, Attorney’s U.S. U.S. Houston, TX, Texas, Southern District Plaintiff-Appellee. Lieberman, Max Jeffrey Steven James DeBorde, Bires, Kennedy, & Schaffer Houston, TX, Defendant-Appellant. HIGGINBOTHAM, SMITH, Before *5 ELROD, Judges. Circuit ELROD, WALKER JENNIFER Judge: Circuit (“Garcia”) ap- Beleal Garcia-Gonzalez and peals his conviction sentence imprisonment months of and as- $600 (1) fees, challenging: propri- sessment the ety supplemental jury of a instruction and sufficiency the of the evidence in jury on his convictions three counts of (2) trafficking; child sex the calculation of Sentencing his sentence under the U.S. Guidelines; and three of his six convic- multipliсity tions for alien on grounds. AFFIRM. We I. illegal
This case involves four of eleven (C.M., B.Y., D.L., R.J.), female aliens and who smuggled pretenses were under false from Honduras into the to United States bar, work Garcia’s and tend to his cus- B.Y., girls—C.M., tomers.1 of the Three and D.L.—are sisters. ("In deferring
1. This recitation of the facts evi- ... is based on addition to to the district presented dence light findings, at trial viewed in a court's factual the court must view jury’s favorably party pre- favors the verdict. See United States v. the evidence most to the below, (5th Cir.2010) Scroggins, vailing except where such a view is nightly wage same promised her the arranged $20 Garcia In October drink, kept ap- and and (age seven- and for each girls—C.M. four $3 three of the fifteen), teen), (age smuggling and R.J. to (age plied wages all earned her B.Y. fifteen)—to illegally from transported girls, be Similar to the other debt. The into the United States. having
Honduras D.L. that sex with customers told by Honduras oth- escorted from girls only way money were the for her to make only the men, money and with no er D.L. did not have sex keep. Although were told girls backs. The customer, clothes on their pay with customers in a restaurant they working be would touched her at the bar. inappropriately reaching After States. the United first, girls At the four lived Garcia’s States, girls brought were United smug- girls house with other who had been arrived, day they house. Garcia’s illegally, into the where gled buy re- girls shopping Garcia took employees constantly and moni- his they clothing and told them vealing girls were not allowed to tored them. tending to custom- working be would permis- without leave the house Garcia’s ers at his bar. sion, supervised by to be Gar- and needed girls night promised $20 employees they when left. cia or one job, girls had to part As wages. that he would look for girls Garcia told the If a customer with the customers. “drink” they if es- them and hаrm their families girl, buy he had to her to sit with wanted house, caped. kept guns He $6, girl would earn a beer for which one at D.L. on at least one occa- pointed *6 received a ticket for each girls The $3. date, girls At a the moved into sion. later them, they turned and purchased beer house, with one of Garcia’s em- a different of the week for in the tickets at the end subjected them to ployees, who the same and paid never C.M. payment. Garcia Eventually, law monitoring. enforcement or their earnings for their tickets B.Y. illegal smug- the and disbanded discovered money and kept the nightly wаges. Garcia gling operation. $4,500 smuggling debt it to the applied of the him and to the cost they “owed” counts of charged was with three Garcia told the bought them. Garcia clothes he of 18 trafficking, violation child sex only way they could earn girls that the 1591(a)(1), conspir- § count of one U.S.C. through for themselves was money keep aliens, in of 8 illegal violation ing to harbor total, In having with his customers. sex 1324(a)(l)(A)(v)(I), § and six counts U.S.C. customers, pay sex for with six C.M. had in violation of harboring, alien customers, with two pay B.Y. had sex 1324(a)(l)(A)(iii). four-day During a § any custom- not have sex with and R.J. did case trial, government built its jury the ers. testimony numerоus wit- around the B.Y., D.L., C.M., nesses, and R.J. including fourteen), (age girl,
The fourth D.L. Garcia on all counts. jury, The convicted illegally a into the smuggled the factual find- adopted court The district after her older sisters—C.M. few weeks Investigation Re- Presentence ings the trafficking same and B.Y.—under the (“PSR”) to 360 Garcia port sentenced told pretenses. and false scheme customers, child-sex-trafficking counts on the months had to drink with D.L. she omitted)). (internal quotation findings a whole.” as with the trial court’s inconsistent considering evidence clearly the erroneous alien-harboring asked whether sex act had to occur months on the and 120 concurrently, counts, guilty run and a find Garcia of child sex all to $100 1591(a). alien-harboring objection, fee for each Over Garcia’s assessment timely appealed. no. the district court answered count. argues supplemental
II. jury instruction modified the essential ele- child-sex-trafficking ments of the A. jury. and confused the The appeal claim on chal Garcia’s first proper. counters that the instruction was supplemental lenges propriety 1591(a) supports text of sufficiency and the jury instruction government’s provides The text position. of his convictions for evidence “... not attained the person has trafficking.2 We first three counts of sex age years of 18 and will be caused to jury instruction issue. We address in a sex act.” engage commercial jury instructions for abuse typically review 1591(a). The future verb tense of the discretion, when, here, jury “a but as phrase precedes “will be caused”—which hinges question instruction on a of statuto engage “to in a commercial sex act”— construction, ry this court’s review is de that a act not indicates sex does have Wright, States v. novo” United (5th Cir.2011) added). satisfy occur to the elements of the child- (emphasis sex-trafficking оffense. To conclude other- jury correctly instructions meaning wise erases the of “will be” from essential of child stated the three elements Black, statutory text. White v. See 1591(a): (1) trafficking under “that sex (5th Cir.1999) (citation recruited, knowingly en the defendant omitted) (explaining that “give we must ticed, harbored, transported, obtained or ordinary meaning words their ... not victim];” maintained “that the re [the meaningless language render as of a cruiting, enticing, harboring, transporting, statute”); Bryan see also Antonin & Sealia *7 or providing, obtaining maintaining of [the Garner, Reading Interpreta- A. Law: The in affecting was or interstate or victim] (1st 2012) Legal tion of Texts 174 ed. (3) commerce,” foreign and that “the de (discussing “surplusage of con- canon” knowing fendant committed such act or in struction, provides that possi- which “[i]f disregard reckless of the fact ... that [the ble, every every word provision and is to years age victim] was under the of 18 effect”).3 given be age engage and would be caused to in a Next, sufficiency commercial sex act.” providing After we turn to the instructions, Jury these Note 1 of the in support Number evidence of Garcia’s con- 1591(a) punishes engage 2. 18 U.S.C. whoever caused to in a commercial sex ''knowingly”: act.... (1) 1591(a). affecting foreign in or interstate or com- recruits, entices, harbors, merce ... trans- obtains, ports, provides, by harmony only or maintains This conclusion is in with the any person knowing, means a ... or in explicitly other circuit that has addressed this disregard Brooks, reckless of the fact that means of issue. See United States v. force, force, fraud, threats of coercion ... 1186, (9th Cir.2010) (concluding 1197 & n. 4 any combination of such means will be 1591(a) that the elements of can be satisfied person engage used to cause the to in a ultimately even when the victim does "not act, person commercial sex or that the has engage any prostitution”). in acts of age years not attained the of 18 and will be
313 money or of child sex traf leave Honduras with no clothes on three counts vietions wearing, what they besides were under involves a ficking, specific each of which pretenses they would be (Count working false 1—C.M., underage victim female in a 3—B.Y.). years restaurant.’ was seventeen C.M. 2—D.L., and Count Gar Count years old and B.Y. old was when and only one three of fifteen disputes cia elements . they into the smuggled were United count. Garcia moved for a each Because day States. On the that C.M. and B.Y. close at the judgment acquittal States, in arrived Garcia took them de case, panel government’s reviews buy clothing jobs for their revealing novo question of whether evidence bar, paid his where customers for the sis- his support was sufficient to conviction. kept ters to drink alcohol. Garcia and Xu, 452, See United States all to the applied wages earned sisters’ (5th Cir.2010). “the view evidence We smuggling employees Garcia and his debt. prosecu light favorable to most sisters, constantly monitored the and Gar- tion,” “any whether rational consider cia threatened that he would harm the have found the trier of fact could essential family they sisters’ if tried to escape. beyond elements the crime reasonable C,M. testified that told her that the 307, Virginia, doubt.” Jackson v. U.S. way only money could make she was L.Ed.2d 560 99 S.Ct. through having with customers. sex Gar- removed). (emphasis proposed cia the sisters engage that the We conclude evidence prostitution, told them how much to sufficient to Garcia’s convictions sex, charge arranged the sexual all of child sex on three counts evidence, a encounters. From this ration- 1591(a). As Counts and 3 al trier of fact could hаve concluded that B.Y.), (involving a rational C.M. and trier B.Y., knowingly harbored C.M. and govern of fact have found that the could knew, and created a in which he situation ment the essential elements of the least, satisfied very recklessly or at the disregard- ed, after child-trafficking crediting wit that his actions would cause C.M. and establishing that: testimony prostitution ness Garcia B.Y. to with engage sister, B.Y., arranged for and her customers.4 C.M. argu- disregard
4. Garcia raises two additional his actions would cause B.Y. to also ments, reject they prostitution—on grounds engage which we both of because improper interprеtations are based on of 18 the evidence that he does not show used *8 First, C.M., 1591(a). respect § with engage prostitution. U.S.C. to in means to cause B.Y. to claim, argues government Garcia that the cannot support In he relies on of his B.Y.'s satisfy knowingly element one—that he re- testimony in admission that Garcia never told cruited, harbored, transported and C.M. into engage prostitution. argument her to in This illegally—alleging the that he United States unpersuasive a because it relies on "means prostitution, 1591(a) into did not “coerce” C.M. and applies § cause” that to element in in engaged prоstitution voluntarily. that she in only who cases that involve victims have argument gov- This is irrelevant because the age eighteen. the reached of To establish this required prove case, ernment to was not coercion government element in the the instant 1591(a) given § the plain knew, terms of that only required prove to that Garcia age eighteen. C.M. was under the Id. (1) disregard, or was in that: B.Y. reckless Moreover, a rational trier of fact could have (2) eighteen, age was under the and she considering inferred “coercion” after the evi- engage in would be caused to commercial above, dence described above. explained rational sex. Id. As a trier of Second, B.Y., govern- respect argues the to fact could have concluded that with beyond that the ment elements a rea- evidence was insufficient establish established these prong in he knew or was reckless sonable doubt. three—that 314 2L1.1(b)(6) D.L., § involving pursuant we ment U.S.S.G. to Count
As clearly could enhancement were erroneous. rational trier of fact that a conclude 2Ll.l(b)(6) two-point allows for a satisfied Section the found that have in- involved “[i]f of the child-sex- enhancement offense еlements the essential a sub- tentionally recklessly creating considering after bodily or serious stantial risk of death the record: Garcia following evidence 2L1.1(b)(6). § D.L., injury person.” was then fourteen to another who arranged for old, The district court overruled Garcia’s ob- smuggled be into years 2Ll.l(b)(6) jection enhancement after her older sisters. to the weeks few sisters, grounds smuggled D.L. was on the Garcia’s to her Similar intentionally female victims or reck- that she would work pretenses under false lessly risk of seri- put D.L. to work created substantial in a restaurant. bodily injury by causing them to en- bar, applied wаges all ous kept in his debt, The court’s smuggling gage prostitution. and told her district to her earned by statutory relations” if she want determination was informed could “have that she Texas, rape legal age laws in where the money.5 to make ed of consent is seventeen. Tex. Penal Code Having rejected each of Garcia’s suffi- 22.011(a)(2),(c). we conclude that ciency challenges, sufficient to all three evidence was argues only that the victim under child-sex-trafficking convictions. of his that she age eighteen who testified job had sex connection with her at his
B. and, years bar was old therе seventeen appeal fore, second claim on Garcia’s age above the of consent Texas. the calculation of his 360-month challenges Regardless, may we affirm the enhance grounds, on four each Guidelines sentence any ground supported by ment on reject. Jackson, We review of which we de novo record. n. 453 F.3d 11. 2L1.1(b)(6) inter application the district court’s application note to pretation of the Guidelines. United States applies states that the enhancement to a (5th Solis-Garcia, 511, 2L1.1, v. 420 F.3d variety “wide of conduct.” cmt. Cir.2005). court’s We review thе district application 5. PSR recommended the findings supporting factual an enhance fact enhancement based on the (11) ment for clear error. United States “five of the eleven undocumented (5th Cir.2010). Mata, engaged prostitution aliens harbored af may an We affirm enhancement on being ter coerced otherwise forced and/or by ground supported the record. United practice into the said at the [defendant’s Jackson, States v. 308 n. 11 adopted The district court bar].” the facts (5th Cir.2006). in the PSR. Based on the Guidelines com facts,
mentary
and these
we conclude
the distriсt
court’s determination
Gar
*9
First,
argues
intentionally
recklessly
Garcia
that the dis
cia’s actions
cre
bodily
trict
court’s factual determinations
ated a substantial risk of serious
applying
injury by
engage
of
enhance-
to
two-point
coercing
pros-
them
because,
above,
argues
government
explained
5. Garcia further
that the
lacks merit
as
the
satisfy
1591(a)
cannot
the essential
of the
plain
require
§
elements
terms of
do not
a sex
child-sex-trafficking offense because D.L. nev-
act to occur.
argument
er had sex with a customer. This
showing, we will exercise discretion
this
support, regardless
for financial
titution
“ ‘only if the error seri
correct the error
clearly
not
erroneous.
age, was
their
fairness,
integrity, or
ously
the
affect[s]
court’s conclu
Even if the district
”
judicial proceedings.’
public reputation
recklessly
intentionally or
sion that Garcia
Escalante-Reyes,
States v.
United
bodily
risk of serious
a substantial
created
2012) (en banc)
(5th
F.3d
Cir.
erroneous, the error was
clearly
injury was
(alterations in
Puckett v.
original) (quoting
minimum
the
Garcia received
harmless.
States,
129, 135, 129
556 U.S.
S.Ct.
United
months, and the
of 360
sentence
Guidelines
(2009)).
1423,
317 assertion, Contrary to Garcia’s 3D1.2. conduct” Garcia’s was “relevant R.J. (a) (b) here inapplicable and are prongs that de- sex-trafficking Convictionsbecause multiple counts involve light of the because the ten “plausible termination Simmons, v. victims. See United States entirety.” its record reviewed (5th Cir.2011) (5th (holding F.3d Solis, correctly court refused to Cir.2002). that the district we conclude that Accordingly, all in an indictment in a group counts district court to not error for the it was multiple single group when there were vic- involving R.J. uncharged conduct rely on offenses). tims the defendant’s As to when count of conviction separate as a (c), claims that child pur- рrong range Guidelines calculating Garcia’s 2G1.3(d)(l). trafficking harboring alien are en- sex suant to PSR, howev-
tirely different offenses. The 4. er, used facts that formed the basis specific as a child-sex-trafficking counts Fourth, contends that the - a apply six-point offense -characteristic to grouped not have district court should 2Ll.l(b)(8)(B) §to pursuant enhancement (involving sex 1-3 Counts There- alien-harboring under the counts. (in minors) from 4-10 separately Counts fore, challenge has merit. aliens) Garcia’s of minor volving adjustment purposes of a multi-count assuming arguendo Even that the that all ten argues 3D1.4. He separate grouping of the district court’s the same substantially involve counts error, cannot show that counts was illegal prostitution of minor harm—the rights the error affected substantial Garcia did not raise this aliens. Because re prong plain-error under the third court, we re objection before the district above, the sex-traffick explained view. As Olano, only. error 507 U.S. plain view sentencing calcula ing counts drove 732, 113 S.Ct. adjusted they higher because had tions separate grouping that the (cid:127)We conclude adjusted level would level. This not reversible of the ten counts was if the district the same even have been provides four cir- 3D1.2 error. Section counts into a placed had all ten court counts involve cumstances under which Therefore, cannot group. single harm, thus substantially the same his substantial an error that affected show grouped together. Garcia as- should be have received because he would rights applicable first three are serts that the sentence. He range and same Guidelines the instant case: bron, F.3d at 559. (a) the same vic- When counts involve reasons, we conclude For these or transaction.
tim and the same act in the dis- еrror there was no reversible (b) same vic- counts involve the When Guide- calculation of Garcia’s trict court’s or more acts or transactions tim and two lines sentence. objec- a common criminal by connected constituting part of common tive or C. plan. scheme appeal challenges (c) final claim on Garcia’s one of the counts embodies When for alien har- convictions three of his six specific as a of- conduct that is treated 8 U.S.C. in, violation adjust- boring, or other fense characteristic 1324(a)(l)(A)(iii), multiplicity on to, to an- guideline applicable ment Thus, only it involves grounds. $300 other of the counts. *12 318 any fees, any place, including alien in impli- not such and does assessment
total it imprisonment as was of any transportation. cate his term means of building or concurrently on all counts. imposed 1324(a)(1)(A)(iii). ultimate issue here multiplic raise this did not “any Congress intended for is whether court; the district objection before ity of place” place to mean that each harbor- Ola thus, only. error plain for we review prosecu- unit ing qualifies separate as a of
no, 732, 1770. As 507 U.S. at 113 S.Ct. contexts, In other we have stressed tion. review, above, plain-error on explained statutory of the term meaning that (2) (1) error, an that is must show: it can “any” ambiguous can be because that affected his substantial plain, v. mean “one” or “some.” United States may Id After such showing, a we rights. Prestenbach, (5th 780, 230 F.3d 782-83 to correct the error exercise discretion “ Cir.2000). seriously ‘only affect[s] if the error fairness, of integrity, public reputation or ” Escalante-Reyes, judicial proceedings.’ (alterations original) F.3d at 419 assuming arguendo that it Even Puckett, 135, 129 556 U.S. at S.Ct. (quoting a was error for the district court to enter 1423). all judgment of conviction on six alien- counts, plain. the error wаs not on counts of
Garcia was indicted
two
plain-error
of
re
prong
Under the second
sister—C.M.,
alien-harboring
each
view,
that
legal
Garcia must show a
error
D.L.,
only
and B.Y. The
difference be-
obvious,
subject
is “clear or
rather than
pair
in each
was the
tween the counts
Puckett,
dispute.”
reasonable
U.S.
harboring—one
location of
count
in-
(affirming
is an issue of first we conclude 1324(a)(1)(A)(iii) plain terms of any plain error was not or obvious. punish person who: Jackson, See United States (5th Cir.2008) (affirming that an it plain implicated error was not when [K]nowing disregard or in reckless question impression); first to, the fact that an alien has сome en- Hull, (5th 265, 272 States v. tered, or remains the United States Cir.1998) (holding any potential error law, conceals, harbors, violation of or was not when the “[the defendant’s] detection, shields from attempts conceal, harbor, detection, ory require[d] precedent”). or shield from an extension
HI. America,
UNITED STATES *13 reasons, con- Garcia’s foregoing Plaintiff-Appellee For the AFFIRMED. sentence are victions and v. HIGGINBOTHAM, E.
PATRICK Judge, concurring part Circuit MINOR, Emmett L. Defendant- dissenting part: Appellant. opinion ex- I concur this well-stated I would vacate one of cept respect. in one No. 12-30247. convictions for alien-harboring two Appeals, United States Court lenity, I the rule of each sister. Given Fifth Circuit. error was er- multiplicity think the April Ogba, ror. See United (5th Cir.2008).
214, 237-38