United States v. Andre Holston , 615 F. App'x 616 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12370
Non-Argument Calendar
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D.C. Docket No. 0:13-cr-60284-JIC-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE HOLSTON,
a.k.a. Smurf,
a.k.a. Deon Render,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 29, 2015)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
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Andre Holston appeals his convictions and sentences for conspiracy to
commit sex trafficking of minors and sex trafficking of minors. On appeal,
Holston argues that the district court erred when it admitted Holston’s statements
to a fellow inmate as statements in furtherance of the conspiracy, when it awarded
a four-level enhancement in Holston’s total offense level for three additional
victims under U.S.S.G. § 1B1.3, and when it awarded him a two-level
enhancement because the offense involved an unusually vulnerable victim under
U.S.S.G. § 3A1.1(b)(1). Upon review of the record and consideration of the
parties’ briefs, we affirm.
I.
Holston first argues that the district court erred when it admitted Holston’s
statements to a fellow inmate that he and his co-conspirators intended to kill the
victim who planned to testify at his trial, on the ground that it was in furtherance of
the conspiracy. He contends that the conspiracy ended when he was arrested, and
so statements made while he was incarcerated cannot be considered in furtherance
of the conspiracy.
We review a district court’s rulings on evidentiary issues for clear abuse of
discretion. United States v. Sterling, 738 F.3d 228, 234 (11th Cir. 2013), cert.
denied, 134 S. Ct. 2682 (2014). Objections or arguments that are not raised at the
district court are reviewed for plain error. United States v. Evans, 478 F.3d 1332,
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1338 (11th Cir. 2007). To establish plain error, a defendant must show: (1) error,
(2) that is plain, and (3) that affects substantial rights. Id. If all three conditions
are met, we may exercise our discretion to recognize the error, if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id. An
opposing party’s statement is not hearsay if it was made by the party in an
individual capacity or was made by the party’s co-conspirator during and in
furtherance of the conspiracy. Fed.R.Evid. 801(d)(2)(A), (E).
Because Holston did not raise this objection in the district court, we review
it only for plain error. The district court did err in determining that the statements
were admissible as statements of a co-conspirator, because the statements were not
made by a co-conspirator; rather, the challenged statements were made by Holston
himself. As such, they were admissible as statements of a party opponent.
Fed.R.Evid. 801(d)(2)(A). Thus, the district court’s error did not affect Holston’s
substantial rights.
II.
Holston next argues that the district court erred when it awarded a four-level
enhancement in Holston’s total offense level for three additional victims, under
U.S.S.G. § 1B1.3. Holston contends that the evidence in this case established that
each co-conspirator managed his own business, and therefore, there was no jointly
undertaken criminal conspiracy. Furthermore, the district court was required to
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first determine the scope of criminal activity that each defendant agreed to
undertake, before determining whether the conduct of others was in furtherance of
that joint criminal activity and reasonably foreseeable to Holston in connection
with the joint criminal activity, which the district court did not do.
We review a district court’s factual findings for clear error and its
application of the guidelines to those facts de novo. United States v. Jordi, 418
F.3d 1212, 1214 (11th Cir. 2005). Sentencing guideline errors are subject to
harmless error review. See United States v. Scott, 441 F.3d 1322, 1329 (11th Cir.
2006).
Section 1B1.3(a)(1)(B) of the Guidelines states that the base offense level,
specific offense characteristics, and adjustments shall be determined, in the case of
a jointly undertaken criminal activity, on the basis of all reasonably foreseeable
acts and omissions of others in furtherance of the jointly undertaken criminal
activity that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or
responsibility for that offense. The application notes to § 1B1.3 require courts to
first determine the scope of the criminal activity the particular defendant agreed to
jointly undertake; and the scope of the specific conduct and objectives embraced
by the defendant’s agreement. U.S.S.G. § 1B1.3, cmt. (n.2). In making this
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determination, the court may consider any explicit or implicit agreement fairly
inferred from the conduct of the defendant and others. Id.
The district court’s finding that Holston was accountable for all four victims
is a finding of fact that we review for clear error. Several witnesses testified at trial
that the prostitution ring was a group enterprise, and each co-conspirator assisted
the others with their portion of the business. Therefore, the district court’s finding
that Holston was accountable for four victims was not clearly erroneous.
III.
Finally, Holston argues that the district court erred when it awarded him a
two-level enhancement because the offense involved an unusually vulnerable
victim, under § 3A1.1(b)(1). Holston states that the enhancement only applies
where the defendant targeted the victim based on the characteristics that made the
victim vulnerable. Furthermore, because Holston should only have been held
accountable for T.C., the vulnerable victim analysis should only have been
performed for her.
The district court’s application of § 3A1.1 presents a mixed question of law
and fact, which we review de novo. United States v. Arguedas, 86 F.3d 1054, 1057
(11th Cir. 1996). However, a district court’s determination of a victim’s
vulnerability is a factual finding to which we give due deference. Id.5
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Section 3A1.1(b)(1) states that if the defendant knew or should have known
that a victim of the offense was a vulnerable victim, his sentence shall be increased
by two levels. A vulnerable victim is a person who is (1) a victim of the offense of
conviction and any conduct for which the defendant is accountable under § 1B1.3,
and (2) unusually vulnerable due to age, physical or mental condition, or who is
otherwise particularly susceptible to the criminal conduct. U.S.S.G. § 3A1.1, cmt.
(n.2).
Whether Holston targeted the victims based on the characteristics that made
them vulnerable is a determination of fact, which we review for clear error. The
district court found that Holston had targeted the victims for the characteristics that
made them vulnerable, and so the district court made the appropriate finding.
AFFIRMED.
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