Case Information
*2
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 *3 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. 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 *4 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. 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). In [1] 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] 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.”
Smith was also charged and convicted for being a felon in possession of a firearm, which is not relevant to this appeal.
6 U NITED S TATES V . S MITH 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). It also [3] 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
,
U.S.S.G. § 2G1.3(a)(1) provides for a base offense level of 34 “if the [3]
defendant was convicted under 18 U.S.C. § 1591(b)(1).” 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
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 *6 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
,
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
,
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
*7
of another part of the Guidelines.”
United States v. Holt
,
We have routinely concluded that two Guidelines
provisions serve unique purposes when applied
cumulatively. 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.”
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.
*9
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
,
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
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
,
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
,
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.
AFFIRMED. 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.