Case Information
*1 Before GREGORY, Chief Judge, and KING and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in which Chief Judge Gregory and Judge Keenan joined.
ARGUED : Erek Lawrence Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Bethesda, Maryland, for Appellant. Rachel Miller Yasser, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF : Rod J. Rosenstein, United States Attorney, P. Michael Cunningham, Assistant United States Attorney, Melanie Goldberg, Student Law Clerk, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
KING, Circuit Judge:
Appellant German de Jesus Ventura and his co-defendant, Kevin Garcia Fuertes, ran several brothels in Annapolis, Maryland. Eventually, their seedy empire was exposed, resulting in the prosecution of Ventura and Fuertes in the District of Maryland. In a seven-count indictment, Ventura was charged with sex trafficking and related offenses. After a jury found Ventura guilty of all seven charges, the district court sentenced him to 420 months in prison. Ventura appealed, and we vacated one of his seven convictions, plus the sentence imposed on the vacated conviction. We therefore remanded to the district court for resentencing. See United States v. Fuertes , 805 F.3d 485 (4th Cir. 2015) (the “First Decision”). [1] On remand, the court resentenced Ventura to an aggregate of 420 months. Ventura has now appealed the new sentence and, as explained below, we affirm.
I.
A. With the help of Fuertes, Ventura established and operated a chain of brothels in Annapolis, Maryland. In early 2008, Ventura was looking to expand and assume control of other brothels in the area. To that end, he was threatening violence to other pimps. For example, in March 2008, Ventura told an associate about another pimp who had been causing him trouble — Ricardo Humberto “el Pelon” Rivas Ramirez. On September 13, *3 2008, Ramirez was murdered. The Annapolis Police Department (the “APD”) learned that, prior to the murder, Ramirez “had received threatening phone calls from two different phone numbers.” Fuertes , 805 F.3d at 490–91. Shortly thereafter, on Sеptember 24, 2008, Fuertes was arrested by the APD after being stopped for a traffic violation. That arrest revealed that Fuertes’s cell phone number was associated with the threatening calls made to Ramirez. When arrested again by the APD on September 25, 2008, Fuertes had in his possession the cell phone from which the threatening calls to Ramirez had been made. Also in his possession were a handful of homemade business cards that advertised prostitution services.
After his September 25 arrest, Fuertes consented to a search of his home. During the search, the APD uncovered several items indicating that the home was a brothel. The search also turned up an address book that included an entry connecting the second phone number associated with Ramirez’s threatening calls to a man named “Pancho.” Further investigation revealed that Ventura, also known as “Pancho” and “Chino,” was the subscriber of the second phone number.
With suspicions aroused, the APD continued to monitor the activities of Ventura and Fuertes. Their monitoring revealed that Ventura operated brothels in Annapolis and that his enterprise extended to Easton, Maryland, and Portsmouth, Virginia. In fact, the APD learned some operational details of Ventura’s venture:
Ventura arranged for prostitutes to work in the brothels from Monday through Sunday. Typically, the women communicated with Ventura by phone, then traveled by bus to Washington, D.C., where they met Ventura, or one of his employees, and drove to the brothel where they worked for the week. The prostitutes provided fifteen minutes of sex for thirty dollars, *4 and were paid half of the gross receipts, less expenses for food, hygiene products, and other expenses of the trade.
See Fuertes
,
On March 25, 2009, Fuertes was again arrested by the APD. This time the APD
found him in an Annapolis apartment littered with “evidence that the residence was being
used as a brothel.”
Fuertes
,
When Ventura was arrested by the APD on September 24, 2009, he possessed two
cell phones, but nevertheless claimed not to have a phone number. He explained that
neither phone was his — “he had found one cell phone at the mall” and “he was
borrowing the other from a taxicab driver whose name he did not know.”
See Fuertes
,
*5
Several months later — on February 17, 2010 — a 911 call about a robbery was
made from yet another phone number associated with Ventura and from which other area
pimps had been receiving threatening calls. The robbery — which occurred at one of
Ventura’s brothels — had been committed by a former employeе of Ventura. That
employee, who had worked as a doorman, “testified at trial that he committed the robbery
because he had not been paid for his work at the brothel.”
See Fuertes
,
The APD subsequently learned that Ventura had opened a brothel in Easton, Maryland. During the execution of a search warrant at that brothel on July 7, 2010, the APD arrested two more of Ventura’s employees. As the investigation into Ventura’s illicit enterprises continued, the APD ascertained, on August 2, 2010, “that Ventura was transporting a prostitute from Maryland to a brothel in [Virginia].” See Fuertes , 805 F.3d at 492.
Finally, on November 3, 2010, “several men believed to be operating at Ventura’s bеhest seriously assaulted competitor-pimp Hector Fabian Avila.” See Fuertes , 805 F.3d at 492. At this point, the investigation came to a head, and the APD arrested Ventura at his home in Capitol Heights, Maryland, on November 15, 2010. He has been in custody since then.
B.
On November 29, 2011, Ventura was charged in a superseding indictment by the grand jury in Baltimore with seven offenses:
• Count One — Conspiracy to commit interstate prostitution, in violation of 18 U.S.C. § 371;
• Count Two — Interstate transportation in furtherance of prostitution offenses, in violation of 18 U.S.C. § 2421;
• Count Three — Coercion and inducement of individuals to travel in interstate commerce for prostitution and illegal sеxual activity, in violation of 18 U.S.C. § 2422(a);
• Count Four — Interstate transportation in furtherance of prostitution offenses, in violation of 18 U.S.C. § 2421;
• Count Five — Interstate transportation in furtherance of prostitution offenses, in violation of 18 U.S.C. § 2421;
• Count Six — Sex trafficking by force, fraud, and coercion, in violation of 18 U.S.C. § 1591(a); and
• Count Seven — Possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). J.A. 24-38. [2] As recited in the First Decision, the jury in the District of Maryland
found Ventura guilty of all seven counts. After denying Ventura’s post-trial motion for judgments of acquittal or a new trial, the district court sentenced Ventura to an aggregate of 420 months in prison, including the following:
• 60 months on Count One;
• 120 months on Count Two, concurrent with sentence on Count One; • 240 months on Count Three, concurrent with sentences on Counts One and Two;
• 120 months on Counts Four and Five, concurrent with sentences on Counts One through Three;
*7 • 360 months on Count Six, concurrent with sentences on Counts One through Five; and
• 60 months on Count Seven, consecutive to sentences on Counts One through Six.
See J.A. 100.
C.
In the First Decision, we rejected Ventura’s arguments relating to the district
court’s admission of “evidence of violence and threats of violence against competitor
pimps” and challenging the admission of expert testimony relating to рhysical injuries.
Fuertes
,
D.
On remand, and prior to the resentencing hearing, the district court secured sentencing memoranda from the Government and Ventura. On December 8, 2015, the *8 court conducted its resentencing hearing. During that hearing, the court explained that — after entering judgment of acquittal on Count Seven — Ventura’s total offense level was 42, resulting in an “advisory sentencing guidelines range [of] 360 months to life.” See J.A. 183.
The district court then recounted its prior sentencing findings “involving [Ventura’s] violence, which included the testimony of Sandra Flores about the gasoline poured on her door, [and] phone threats to do away with her and her family.” See J.A. 183. The court explained that several witnesses had testified about Ventura’s possession of firearms:
Mr. Amparo also testified about the gun in the possession of Mr. Ventura in the brothel and in several other places. Mr. Campos also testified about Mr. Ventura’s possession of the firearm, as did Carlos Ascencio and Mr. Ferman Martinez Hernandez, who placed Mr. Ventura in possession of the shotgun.
Id. Those factual findings led the court to conсlude “that a substantial sentence is appropriate here.” Id. at 184.
Before announcing its new sentence, the district court also alluded to “the evidence of [Ventura’s] behavior while serving his sentence summarized [in] the Government’s November 27, 2015, sentencing letter.” J.A. 184. The Government had therein explained that, in the two years between the first sentencing hearing on November 26, 2013, and the resentencing hearing on December 8, 2015, Ventura was in custody in the Bureau of Prisons (the “BOP”). During that period of custody, Ventura had received five disciplinary actions, including one for threatening a BOP officer. Considering Ventura’s behavior during his incаrceration — along with his “high-level *9 involvement in this tawdry enterprise [and] his use of violence in an effort to monopolize prostitution” — the court decided to impose a sentence on the lower end of the Guidelines range. Id. at 184.
The district court then resentenced Ventura to an aggregate of 420 months in prison — well within the Guidelines range of 360 months to life. Specifically, the court imposed the following sentences:
• 60 months on Count One;
• 120 months on Count Two, concurrent with sentence on Count One; • 240 months on Count Three, to run concurrent with sentences on Counts One and Two;
• 120 months on Counts Four and Five to run concurrent with sentences on Counts Onе through Three; and
• 420 months on Count Six to run concurrent with sentences on Counts One through Five.
See J.A. 190. Those sentences in the aggregate, the court recited, “are sufficient but not greater than necessary to reflect the seriousness of the offenses, provide just punishment and adequate deterrence, promote respect for the law, and protect the public from further crimes of [Ventura].” Id. at 184.
Ventura has again appealed, challenging the 420 month sentence imposed at resentencing. We possess jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
II.
When asked to review the reasonableness of a sentence, we employ an abuse of
discretion standard.
See United States v. Susi
,
III.
Ventura levies a three-pronged attack on the sentence imposed by the district court at his resentencing. First, he contends that the court contravened the mandate rule. Second, he claims the court acted vindictively in again sentencing him to 420 months. Third, he argues that his new sentence is unreasonable because the court considered facts related to the Count Seven conviction that has been vacated, as well as conduct during his incarceration with the BOP. As explained below, we reject each of those contentions.
A.
To start, Ventura argues that, by recalculating the various sentences on those convictions that were not vacated, the district court ran afoul of our mandate in the First Decision. According to Ventura, the court’s recalculation as to Count Six was an “unwarranted attempt to make up for the 60 month loss on Count Seven.” Opening Br. 13. In his view, the only viable option for the court was to strike his sentence on Count Seven and leave intact his six sentences on Counts One through Six, resulting in a 60 month reduction of the aggregate term of his imprisonment. We disagree, and conclude that the court did not contravene our mandate.
When a higher court issues a mandate, it “is controlling as to matters within its
compass,” and it is “indisputable that a lower court generally is bound to carry the
mandate of the upper court into execution.”
See United States v. Bell
,
Another principle of significance that we have employed in resentencing situations
— and that has been adopted by several of our sister circuits — is the “sentencing
package doctrine.”
See, e.g.
,
United States v. Smith
,
In the First Decision, we simply “remand[ed] for entry of judgment of acquittal on [Count Seven] and resentencing.” See 805 F.3d at 501. Our remand did not — as Ventura suggests — automatically entitle him to a 60 month reduction in his aggregate sentence merely because his conviction on Count Seven was vacated. Pursuant to the sentencing package doctrine, the mandate left ample room for the district court to recalculate the sentences related to Ventura’s other six convictions that were not subject to vacatur. The court did not, therefore, exceed the boundaries of our mandate in the First Decision.
B.
Next, Ventura maintains that the district court vindictively increased his sentence on Count Six by 60 months. Vindictiveness is presumed, he explains, because the court increased that sentence from 360 months to 420 months. Even more, he alleges that “there was no objective information which would have justified the [court’s] changed sentence.” See Opening Br. 15. This challenge also fails, however, because Ventura did not receive an increase in his aggregate sentence.
As the Supreme Court has explained, due process “requires that vindictiveness
against a defendant for having successfully attacked his first conviction must play no part
in the sentence he receives after a new trial.”
North Carolina v. Pearce
, 395 U.S.
711, 725 (1969),
overruled on other grounds by Alabama v. Smith
,
In 1992, in United States v. Kincaid , we explained that, to properly assess “whether a sentence violates Pearce and its prоgeny, we first ask whether the new sentence is actually harsher than that imposed prior to successful appeal.” 964 F.2d 325, 328 (4th Cir. 1992) (internal quotation marks omitted). If we determine that an increased sentence was imposed, we will then consider whether the defendant has demonstrated actual vindictiveness or a reasonable likelihood of actual vindictiveness. See, e.g. , id.
In this situation, the district court initially sentenced Ventura to an aggregate of 420 months in prison. On remand, the court resentenced him yet again to an aggregate of 420 months. Put simply, the court did not increase his aggregate term of imprisonment — it imposed thе same term. Ventura argues, however, that the court imposed an *15 increased sentence because the sentence associated with Count Six was increased from 360 months to 420 months.
At bottom, Ventura asks us to assess his sentences under the so-called count-by-
count approach — a methodology apparently employed in the Second and Eleventh
Circuits. Under that approach, we would compare Ventura’s aggregate sentence on the
six counts that were undisturbed (360 months) with the aggregate sentence imposed on
those same counts (420 months).
See, e.g.
,
United States v. Monaco
,
Our Court, however, does not adhere to the count-by-count approach. We have
followed the aggregate package approach — the majority methodology utilized by at
least six of our sister circuits.
[3]
See United States v. Gray
,
Applying the aggregate package approach in this appeal, Ventura’s sentence was not increased. His initial sentence was 420 months in prison, and his second sentence is also 420 months. Put simply, on remand he was given the same — not an increased — sentence. Because Ventura did not receive an increased aggregate sentence, his attempt to еstablish a presumption of vindictiveness must fail.
C.
Finally, Ventura wages a two-pronged attack against the reasonableness of his sentence. First, he argues that, on remand, the district court invaded the province of the jury by making and relying on its own factual findings with respect to the vacated Count Seven conviction to increase his sentence on Count Six. Second, he claims that the court improperly increased his sentence on Count Six by relying on his conduct during his custody with the BOP, resulting in an “inappropriate consideration of the factors under 18 U.S.C. § 3553(a).” Opening Br. 9. We reject both those contentions.
Our review of the reasonableness of a sentence proceeds in two steps. We begin
by reviewing the sentence for procedural error. As we have explained, “[a] district court
commits a procedural error if it fails to properly calculate the Guidelines, treats the
Guidelines as mandatory, fails to consider the statutory factors under 18 U.S.C.
§ 3553(a), bases a sentence on facts that are clearly erroneous, or fails to adequately
*17
explain the sentence imposed.”
See United States v. Layton
,
Ventura does not labеl his contentions about the resentencing as either procedural or substantive. Because those contentions concern whether the district court should have considered certain facts or evidence in crafting Ventura’s new sentence, we see them as procedural in nature. We will, however, address both steps of our reasonableness inquiry in relation to Ventura’s appellate contentions.
1.
We begin by assessing whether the district court erred procedurally when it
considered facts connected to Count Seven. We vacated Ventura’s conviction on Count
Seven for рossession and use of a firearm in relation to a crime of violence, in violation
of 18 U.S.C. § 924(c), because we recognized that “sex trafficking by force, fraud, or
coercion, in violation of 18 U.S.C. § 1591(a), is not categorically a crime of violence.”
See Fuertes
,
To the contrary, the Supreme Court has explained that, in sentencing, a district
court is not barred from “tak[ing] account of factual matters not determined by a jury and
to increase the sentence in consequence.”
See Rita v. United States
,
Accordingly, the district court was entitled to consider Ventura’s violent conduct and possession of a firearm, despite such conduct and firearm possession being tertiary to his vacated conviction. As it recounted, the court had heard the trial evidence relating to Ventura’s physical abuse of his employees — which included belt lashings and beatings — and covering his penchant for firearms. See, e.g. , J.A. 183. We are thus satisfied that the factual underpinnings of Count Seven were proved by a preponderance of the evidence and could be considered by the court in connection with its resentencing of Ventura.
2.
Finally, we must decide whether the district court was entitled to consider Vеntura’s conduct while he was incarcerated with the BOP and whether doing so amounted to a procedural error in the resentencing. Ventura again asserts that the court “engaged in its own fact-finding to determine post-sentencing conduct” and did so “[a]bsent any advice from the Guidelines, without statutory direction, and contrary to due process.” Opening Br. 23. He further argues that, during the resentencing *19 proceedings, the court was only entitled to consider his degree of rehabilitation if it was crafting a sentence that varied downward.
Again, we reject Ventura’s claim that the district court erroneously found facts оut of turn. To begin, the court reasonably accounted for Ventura’s conduct while he was in the custody of the BOP. Indeed, pursuant to § 3661 of Title 18 of the United States Code,
[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offence which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.
Relying on that explicit statutory provision, the Supreme Court in
Pepper v. United States
ruled that a resentencing court could account for and deсrease a sentence based on the
defendant’s rehabilitation.
See
*20 Furthermore, the district court was presented at resentencing with ample evidence that Ventura had been, among other things, involved in physical altercations and made threatening remarks to others while he was in prison. We are also satisfied that all the facts relied on by the court were established by a preponderance of the evidence, and the court was entitled in its discretion to consider them. As a result, the court did not err in taking account of Ventura’s misdeeds while he was in custody with the BOP.
3.
Having identified no procedural problems, we turn to the substantive reasonableness of Ventura’s resentence to 420 months in prison. In so doing, we consider “whether the totality of the circumstances shows that the district court did not abuse its discretion,” keeping in mind that “a sentence located within a correctly calculated guidelines range is presumptively reasonable.” See United States v. Susi , 674 F.3d 278, 289 (4th Cir. 2012) (internal quotation marks omitted). Because the advisory Guidelines range for Ventura’s sentence was 360 months to life, his 420 month sentence is well within that range and is presumptively reasonable. The only contentions that Ventura presents on appeal in seeking to overcome that presumption are those we have herein rejected. As a result, the presumption of reasonableness remains intact. On the sentencing error is harmless if the resulting sentence was not longer than that to which [the defendant] would otherwise be subject.” See United States v. Hargrove , 701 F.3d 156, 161 (4th Cir. 2012) (second alteration in original) (internal quotation marks omitted). Ventura’s 420 month sentence was well within the applicable Guidelines range of 360 months to life.
whole, the court properly considered the evidence and arguments presented, and the court appropriately exercised its discretion in resentencing Ventura. We are thus satisfied that thе new sentence of 420 months is procedurally and substantively reasonable.
IV.
Pursuant to the foregoing, we are satisfied to affirm the judgment of the district court.
AFFIRMED
Notes
[1] Co-defendant Fuertes was charged in the indictment with three offenses, and he was convicted on each of them. His convictions and sentences were all affirmed in the First Decision. The prosecution of Fuertes is unrelated to this appeal.
[2] Citations herein to “J.A. ___” refer to the contents of the Joint Appendix filed by the parties in this appeal.
[3] The count-by-count approach and the aggregate package approaсh are closely related to the sentencing package doctrine. The sentencing package doctrine permits a sentencing court to refashion the entire sentencing package, and the count-by-count approach and the aggregate package approach may then be employed to an assessment of whether the aggregate sentence was increased on resentencing.
[4] If the district court had erred in considering Ventura’s post-sentencing conduct while incarcerated, any such error would be harmless. As we have explained, “[a] (Continued)