United States v. Jennifer Rivera, Christopher Andrew Terry , 558 F. App'x 971 ( 2014 )


Menu:
  •            Case: 13-11538   Date Filed: 03/12/2014   Page: 1 of 12
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 13-11538
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:12-cr-20634-JLK-2
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JENNIFER RIVERA,
    CHRISTOPHER ANDREW TERRY,
    Defendants-Appellants.
    ________________________
    Appeals from the United States District Court
    for the Southern District of Florida
    ________________________
    (March 12, 2014)
    Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
    PER CURIAM:
    Case: 13-11538     Date Filed: 03/12/2014   Page: 2 of 12
    Jennifer Rivera appeals her convictions and sentence, and her codefendant,
    Christopher Andrew Terry, appeals his sentence, imposed after a jury convicted
    them each on two counts of: (1) conspiring to commit sex trafficking of a minor by
    force or fraud in violation of 18 U.S.C. § 1591(a)(1), (b)(1), (b)(2), and § 1594(c),
    and (2) sex trafficking of a minor by force or fraud in violation of 18 U.S.C.
    § 1591(a)(1), (b)(1), and (b)(2). The sentencing judge imposed sentences of 235-
    and 292-months imprisonment on Rivera and Terry respectively.
    On appeal Rivera argues that there was not sufficient evidence at trial to
    support her convictions. She also argues that the district court erred in applying a
    two-level sentencing enhancement for use of a computer or interactive computer
    service to entice, encourage, offer, or solicit a person to engage in prohibited
    sexual conduct with the minor victim because the jury did not make the requisite
    findings to support the enhancement. Lastly, she and Terry both argue that the
    district court imposed substantively unreasonable sentences. For the following
    reasons, we affirm.
    I.
    Rivera and Terry met the minor victim, H.G., in New York City through
    mutual acquaintances in August 2012. Although H.G. was only sixteen, she
    initially told Rivera and Terry she was 19. Later the same day that they met, she
    told Terry that she was 15. H.G. ended up staying with Rivera and Terry in New
    2
    Case: 13-11538    Date Filed: 03/12/2014    Page: 3 of 12
    York for several days. During this time Terry bought her clothes and took pictures
    of her wearing a dress. He also took pictures of Rivera. These pictures later
    appeared in advertisements for prostitution on a website called Backpage.com that
    Rivera told law enforcement she used to find customers for herself and H.G.
    Rivera also told law enforcement that she posted the advertisements.
    While staying with Rivera and Terry, H.G. testified that one afternoon she
    fell asleep in the car when they were driving around and woke up to find they had
    left New York. They traveled all the way to Miami.
    While they were traveling, H.G. used Rivera’s phone to access Facebook to
    try and contact her mother. At some later time, Rivera contacted H.G.’s mother
    using Facebook. H.G.’s mother testified that she told Rivera H.G.’s true age. H.G.
    also testified that Rivera confronted her at one of the hotels in Miami for lying
    about her age, saying that H.G. was 16 instead of 15.
    While in Miami, they stayed in a number of hotels. Rivera and Terry
    arranged a series of prostitution dates for H.G., after which H.G. would give the
    money to Terry. On one of the dates H.G. testified that Rivera held her down.
    Another one of the dates went awry, ending with gunshots. As a result H.G. got
    separated from Rivera and Terry, and was picked up by the police. Rivera and
    Terry were also brought to the police station where they signed Miranda rights
    waiver forms and gave interviews.
    3
    Case: 13-11538     Date Filed: 03/12/2014   Page: 4 of 12
    II.
    A. Sufficiency of the Evidence
    Rivera first argues that there was not sufficient evidence to establish that (1)
    Rivera intended H.G. to travel in interstate commerce for the purpose of
    committing a commercial sex act; and (2) Rivera knew, or acted in reckless
    disregard of, H.G’s minor age.
    We review de novo a challenge to the sufficiency of the evidence,
    considering the evidence in the light most favorable to the government, and
    drawing all reasonable inferences and credibility choices in the government’s
    favor. United States v. Friske, 
    640 F.3d 1288
    , 1290–91 (11th Cir. 2011). “A jury’s
    verdict cannot be overturned if any reasonable construction of the evidence would
    have allowed the jury to find the defendant guilty beyond a reasonable doubt.”
    United States v. Herrera, 
    931 F.2d 761
    , 762 (11th Cir. 1991).
    Under § 1591(a)(1), the government first must show that the defendant
    knowingly recruited, enticed, harbored, transported, provided, obtained, or
    maintained a person by any means. 18 U.S.C. § 1591(a)(1). The government then
    must prove one of two alternatives: that the defendant knew or was in reckless
    disregard of the fact that (1) the person was under the age of 18 and would be made
    to engage in a commercial sex act, or (2) means of force, threats of force, fraud, or
    coercion would be used to cause the person to engage in a commercial sex act. 
    Id. 4 Case:
    13-11538        Date Filed: 03/12/2014       Page: 5 of 12
    Lastly, the government must prove that the defendant’s acts were in or affected
    interstate or foreign commerce. 
    Id. 1. Interstate
    Commerce
    Relying on a different statute, 18 U.S.C. § 2423, Rivera first argues that the
    government had to prove that she transported H.G., or caused her to be transported,
    in interstate commerce with the knowledge or intention that H.G. would then
    engage in a commercial sex act. However, the elements of § 2423 and § 1591,
    under which Rivera was charged and convicted, are different. Unlike § 2423,
    § 1591 only requires that the defendant’s acts take place in or affect interstate
    commerce. 1 18 U.S.C. § 1591(a)(1) (criminalizing conduct that occurs “in or
    affecting interstate or foreign commerce”).
    Because of this difference, even conduct occurring only in one state can
    satisfy the interstate commerce element of § 1591. United States v. Evans, 
    476 F.3d 1176
    , 1178–80 (11th Cir. 2007). This is so because the conduct still
    “frustrate[s] Congress’s broader regulation of interstate and foreign economic
    activity. . . [and] contribute[s] to the market that Congress’s comprehensive
    scheme seeks to stop.” 
    Id. at 1179
    (quotation marks and alteration omitted). The
    use of hotels that serve interstate travelers and distribution of condoms that travel
    1
    In comparison § 2423(a) applies to “[a] person who knowingly transports an individual who
    has not attained the age of 18 years in interstate or foreign commerce . . . with intent that the
    individual engage in prostitution.”
    5
    Case: 13-11538      Date Filed: 03/12/2014   Page: 6 of 12
    in interstate commerce are also evidence that a defendant’s conduct affected
    interstate commerce. 
    Id. at 1179
    –80 (citation omitted).
    In this case, Rivera, through her conduct with H.G., participated in the
    national market of trafficking of children for commercial sex acts that Congress
    has chosen to regulate. The government also offered evidence to show that Rivera
    traveled from New York to Florida, used hotels that service interstate travelers for
    some of the prostitution dates, and used the internet and cell phones to coordinate
    the dates. There was therefore sufficient evidence to establish the interstate
    commerce element of Rivera’s offense.
    2. H.G.’s Age
    Rivera next argues that the government failed to prove that she knew or
    recklessly disregarded H.G.’s true age. We note that the statute requires proof that
    either Rivera knew or was in reckless disregard of H.G.’s age or that Rivera knew
    or was in reckless disregard of the fact that means of force, threats of force, fraud,
    or coercion would be used to cause H.G. to engage in a commercial sex act.
    18 U.S.C. § 1591(a). We affirm because there was sufficient evidence for the jury
    to find one, if not both, of these alternatives.
    As to H.G.’s age, the government presented evidence that even if Rivera was
    misled as to H.G.’s age at first, she learned H.G. was a minor during the time
    Rivera and Terry were still arranging prostitution dates for H.G. in Miami.
    6
    Case: 13-11538     Date Filed: 03/12/2014   Page: 7 of 12
    Regardless, there was also evidence that satisfied the alternative element that a
    means of force was used to cause H.G. to engage in a commercial sex act.
    Specifically, the government presented evidence that Rivera held H.G. down to
    make her participate in one of the prostitution dates. There was also evidence that
    Terry hit Rivera and H.G.
    Because a “reasonable construction of the evidence would have allowed the
    jury to find [Rivera] guilty beyond a reasonable doubt” as to both the interstate
    commerce element and the element of minor age or means of force, we affirm her
    convictions. 
    Herrera, 931 F.2d at 762
    .
    B. Sentencing Enhancement
    Rivera argues for the first time on appeal that the application of a two-level
    enhancement for her use of a computer or interactive computer service was
    improper because the sentencing judge, instead of the jury, made the requisite
    findings to support the enhancement. We review the district court’s application of
    the Sentencing Guidelines de novo and its findings of fact for clear error. United
    States v. Bane, 
    720 F.3d 818
    , 824 (11th Cir. 2013). Where, as here, a defendant
    seeks to raise a sentencing argument for the first time on appeal, we review that
    claim for plain error. United States v. Aguillard, 
    217 F.3d 1319
    , 1320 (11th Cir.
    2000). Under this standard of review, there must be error that was plain and which
    affected the defendant’s substantial rights. 
    Id. 7 Case:
    13-11538     Date Filed: 03/12/2014    Page: 8 of 12
    Section 2G1.3(b)(3) of the United States Sentencing Guidelines (USSG)
    provides for a two-level increase to the offense level if an offense involved the use
    of a computer or an interactive computer service to “entice, encourage, offer, or
    solicit a person to engage in prohibited sexual conduct with [a] minor.” USSG
    § 2G1.3(b)(3). It does not affect the statutory mandatory minimum provided for by
    18 U.S.C. §§ 1591 or 1594(c), the statutes under which Rivera was convicted. The
    statutory maximum for a violation of § 1591(a) is life imprisonment. 18 U.S.C. §
    1591(b). The statutory minimum is fifteen years if the offense involves a child
    under the age of 14 or “force, threats of force, fraud, or coercion.” 
    Id. at §
    1591(b)(1). Otherwise the statutory minimum is ten years if it involved a child
    between the ages of 15 and 17. 
    Id. at §
    1591(b)(2). Section 1594(c) provides that
    “[w]hoever conspires with another to violate section 1591 shall be fined under this
    title, imprisoned for any term of years or for life, or both.” 
    Id. § 1594(c).
    Rivera relies upon Alleyne v. United States, 570 U.S. ___, 
    133 S. Ct. 2151
    (2013), in making her argument that the jury, not the sentencing judge, had to
    make the findings that support the enhancement for use of a computer or
    interactive computer service. In Alleyne, the Supreme Court held that any fact,
    other than a prior conviction, that increases the statutory minimum punishment is
    an element that must be charged in the indictment and proved beyond a reasonable
    doubt. 
    Id. at 2155,
    2162–63. The Court cautioned that its holding did not disturb
    8
    Case: 13-11538     Date Filed: 03/12/2014    Page: 9 of 12
    judicial factfinding at sentencing for facts that do not impact the statutory
    punishment. 
    Id. at 2163.
    Because the enhancement applied to Rivera only affected her Sentencing
    Guidelines range, not her statutory mandatory minimum or maximum, her reliance
    on Alleyne is misplaced. For Rivera, the jury did make specific findings as to the
    facts that affected her statutory minimum, specifically whether Rivera’s conduct
    involved “force, threats of force, fraud, or coercion,” or a child of between 15 and
    17 years. On this record, it was not error for the sentencing judge to make the
    required findings to apply the two-level sentencing enhancement for use of a
    computer or an interactive computer service. We therefore affirm that ruling.
    C. Procedural and Substantive Reasonableness
    Lastly, Rivera argues that the district court failed to adequately consider the
    § 3553(a) factors in declining to grant her a downward variance in her sentence.
    Terry also appeals the substantive reasonableness of his sentence.
    We review the reasonableness of a sentence under a deferential abuse of
    discretion standard of review. Gall v. United States, 
    552 U.S. 38
    , 41, 
    128 S. Ct. 586
    , 591 (2007). We use a two-step process to ensure that the sentence is both
    procedurally and substantively reasonable. United States v. Turner, 
    626 F.3d 566
    ,
    573 (11th Cir. 2010).
    9
    Case: 13-11538     Date Filed: 03/12/2014   Page: 10 of 12
    A sentence is procedurally unreasonable if the district court erred in
    calculating the Guidelines range, treated the Sentencing Guidelines as mandatory,
    failed to consider the § 3553(a) factors, selected a sentence based on clearly
    erroneous facts, or failed to adequately explain the sentence, including any
    deviation from the Guidelines range. United States v. Rodriguez, 
    628 F.3d 1258
    ,
    1264 (11th Cir. 2010). Neither Rivera nor Terry argues that their sentences were
    procedurally unreasonable.
    The substantive reasonableness of a sentence is determined in light of the
    totality of the circumstances, and we will not vacate a sentence as substantively
    unreasonable unless we are left with the definite and firm conviction that the
    district court clearly erred in weighing the § 3553(a) factors and imposed a
    sentence outside the range of reasonable sentences. 
    Turner, 626 F.3d at 573
    . In
    considering the § 3553(a) factors, the district court does not have to discuss each
    one explicitly. United States v. Gonzalez, 
    550 F.3d 1319
    , 1324 (11th Cir. 2008).
    An acknowledgement that the court has considered the defendant’s arguments and
    the § 3553(a) factors will suffice. 
    Id. Furthermore, the
    fact that a sentence is
    below the statutory maximum is indicative of its reasonableness. See 
    id. 1. Rivera’s
    Sentence
    The Presentence Investigation Report set Rivera’s Sentencing Guidelines
    range at 292- to 365-months imprisonment, which included three enhancements.
    10
    Case: 13-11538     Date Filed: 03/12/2014    Page: 11 of 12
    At the sentencing hearing, Rivera only objected to application of the undue
    influence enhancement under USSG § 2G1.3(b)(2)(B). The district court sustained
    this objection, which lowered her Guidelines range to 235 to 293 months. The
    sentencing hearing transcript also reflects that the district court considered Rivera’s
    arguments for a downward variance in making its final sentencing determination.
    The district court sentenced Rivera to the bottom end of her Guidelines range, 235-
    months imprisonment.
    Although Rivera concedes that the district court considered the § 3553(a)
    factors, Rivera argues that the district court’s consideration of those factors “was
    insufficient” given her personal circumstances, her relationship with Terry, and her
    relative role in the offenses. She also claims that a lesser sentence would have
    been sufficient to achieve the broader goals of sentencing.
    Given that the district court considered Rivera’s specific circumstances and
    sentenced her to the bottom end of her Guidelines range, well below the statutory
    maximum, we are not left with the definite and firm conviction that the district
    court committed a clear error of judgment in its weighing of the § 3553(a) factors.
    We therefore affirm Rivera’s sentence.
    2. Terry’s Sentence
    Terry argues that the district court failed to give proper consideration to the
    factors set forth in 18 U.S.C. § 3553(a). We again conclude the record does not
    11
    Case: 13-11538     Date Filed: 03/12/2014   Page: 12 of 12
    show the district court committed a clear error of judgment in its weighing of the
    § 3553(a) factors, and therefore affirm Terry’s sentence.
    At the sentencing hearing, the district court sustained Terry’s sole sentencing
    objection, the application of an undue influence enhancement under USSG
    § 2G1.3(b)(2)(B). This lowered the bottom end of Terry’s Sentencing Guidelines
    range from 360-months to 292-months imprisonment. After considering Terry’s
    arguments for a downward variance based on the § 3553(a) factors, the district
    court sentenced Terry to the low end of his Guidelines range, 292-months
    imprisonment. The record does not support Terry’s argument that the district court
    failed to properly weigh his history and characteristics, as the transcript shows the
    district court acknowledged Terry’s arguments and considered the § 3553(a)
    factors in making its sentencing decision. See 
    Gonzalez, 550 F.3d at 1324
    . The
    reasonableness of Terry’s sentence is also indicated by its being well below the
    statutory maximum. Id.; 18 U.S.C. § 1591(b)(1). We therefore affirm Terry’s
    292-month sentence.
    III.
    For these reasons, we affirm Rivera and Terry’s convictions and sentences.
    AFFIRMED.
    12