United States v. Jermayne Whyte , 928 F.3d 1317 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15223
________________________
D.C. Docket No. 0:16-cr-60350-WPD-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERMAYNE WHYTE,
a.k.a. Turtle,
JENNIFER CASTRO,
Defendants - Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(July 10, 2019)
Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
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The main issue presented by this appeal is whether the government may
prove sex trafficking of a minor, 18 U.S.C. § 1591, by establishing only that a
defendant had a reasonable opportunity to observe the minor victim instead of
proving that he knew or recklessly disregarded the victim’s age. Jermayne Whyte
and Jennifer Castro appeal their convictions and sentences for the sex trafficking of
a minor, id.; conspiracy to commit sex trafficking of a minor, id. §§ 1591(a)(1),
(b)(2), 1594(c); and knowingly transporting an individual in interstate commerce
for the purpose of engaging in prostitution, id. § 2421(a). After A.E., a 16-year-old
runaway from California, arrived in Florida, she met Whyte and Castro and lived
with them for about two months during which Whyte and Castro obtained work for
A.E. at strip clubs and facilitated her prostitution. Notwithstanding our earlier dicta
to the contrary in United States v. Mozie, 752 F.3d 1271, 1282 (11th Cir. 2014), we
conclude that the 2015 amendment of section 1591 makes clear that the
government may satisfy its burden by proving that the defendant had a reasonable
opportunity to observe the minor victim. We also conclude that Whyte and
Castro’s challenges of the jury instructions, the denial of their motion to suppress
evidence, a limitation on Castro’s cross-examination of A.E., and their sentences
all fail. We affirm.
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I. BACKGROUND
When A.E. was 16 years old, she ran away from her family in California.
A.E. had been spending time with people her father considered “thugs,” including
a man named Marcus Weber. Weber, whom A.E. later described as a “dangerous
guy” she could not refuse, coerced A.E. to board a flight to Florida. When A.E.
left, she was on probation and could have been punished with up to 15 years of
imprisonment for leaving California.
After A.E. arrived in Florida, she began working for an escort agency. The
agency posted advertisements for A.E. on Backpage.com, a website that could be
used to obtain prostitutes. A.E. began going on what she described as “dates” or
engagements in which men paid to have sex with her. During this period, A.E.
used several false identities.
Shortly after her arrival in Florida, A.E. received unprompted text messages
from Jennifer Castro, an adult prostitute who also worked at strip clubs. Castro told
A.E. that she “could put [A.E.] in a better situation.” After texting with Castro for
two days, A.E. agreed to meet her. When they met in person, Castro came with her
partner, Jermayne Whyte, nicknamed “Turtle,” and their baby. Whyte and Castro
brought A.E. home with them. A.E. lived with Whyte and Castro in their
townhouse for most of a two-month period. A.E. slept on the couch, and Whyte
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and Castro slept in the master bedroom. Whyte and Castro bought A.E. food and
clothing. They also gave A.E. marijuana and smoked it with her.
For the first few days, A.E. enjoyed living with Whyte and Castro and
performed no work. But then Whyte and Castro encouraged A.E. to work at a strip
club. A.E. explained that she had no identification document, but Whyte and
Castro obtained a false identification for her. The identification was in the name of
“Jessica Berry,” who was about 24 or 25 years old. A.E. used this false
identification to work at multiple strip clubs. Whyte and Castro drove A.E. to the
strip clubs to perform that work.
Whyte and Castro also began prostituting A.E. They both posted ads for
A.E. on Backpage.com. They chose the content of the ads and set the price for
A.E.’s services. Along with the online ads, Whyte and Castro told A.E. to pick up
clients at the strip clubs. And they took her to a nearby Hard Rock Casino to look
for clients.
Whyte and Castro managed A.E.’s prostitution. They had a “trick phone” to
communicate with A.E.’s “tricks”—i.e., the men who were paying to have sex with
her. Whyte pretended to be A.E. in text conversations with her clients because A.E.
“didn’t know how to talk to them.” Whyte and Castro instructed A.E. on how to
treat clients, told her to use condoms, and taught her how to identify undercover
police officers. A.E. did not know how to do her makeup, so someone else had to
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do it for her. A.E. had no control over the money she made. Whyte would drive
A.E. to her engagements, wait for her, and then collect the money. Castro also
accompanied A.E. and was sometimes present in the same room as A.E. when she
was having sex with a client. When she was working for Whyte and Castro, A.E.
saw four to six clients a day.
After a few weeks of working for Whyte and Castro, they took a trip to
Atlanta so that A.E. could work in more lucrative strip clubs there. Whyte drove
A.E. in a rental car and arranged for A.E. to have sex with a client on their way.
Whyte also had sex with A.E. on the trip. When he got tired, Whyte asked A.E. to
drive, but she did not know how to drive and hit a traffic cone. Whyte later
acknowledged that he needed to teach A.E. how to drive. Castro flew to Atlanta to
meet Whyte and A.E., and the three of them stayed in a single hotel room. Whyte
and Castro posted Backpage.com ads for A.E. and had her work at two strip clubs.
But one strip club would not allow A.E. to work there because her appearance did
not match the photograph for her identification and she “look[ed] young.”
A.E. left Whyte and Castro a few times. After the Atlanta trip, A.E. left them
when Whyte was arrested on an unrelated charge of providing a false
identification. A.E. had several conversations with Whyte while he was in jail,
which were recorded. Whyte encouraged A.E. to go back to Castro and called them
a “family.” Castro texted A.E. that she was “not here to play kiddie feelings games
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with [A.E.]” and rebuked A.E. for being “too scared to deal with problems like a
grown person.” While Whyte was in jail, Castro maintained the trick phone, and
she continued to post A.E. on Backpage.com. Castro refused to return A.E.’s
medication and belongings to her. After Whyte was released, A.E. returned to
living with Whyte and Castro and working at strip clubs. At one point, A.E. placed
a call to a human-trafficking rescue hotline but did not report Whyte and Castro.
Meanwhile, Agent Roy Van Brunt of the Federal Bureau of Investigation
received a lead about a runaway minor working as a prostitute at a strip club.
When A.E. was working at a strip club one night, the police took her into custody.
A.E. first admitted but then denied her true identity. A.E. told the police about her
Backpage.com ads under the name “Cali Rose” or “Cali Rosebud,” which the
police used to locate the account that posted the ads and the phone numbers
associated with it. After several weeks of being uncooperative, A.E. admitted her
identity to Agent Van Brunt and Detective Nicholas Masters of the Broward
County Sheriff’s Office, and she told them about Whyte and Castro’s role in her
prostitution. After A.E. began cooperating with the police, a California court held a
hearing to revoke her probation, but the court found that A.E. had not violated her
probation.
Based on A.E.’s interview, Detective Masters obtained a search warrant for
Whyte and Castro’s townhome. Although he knew A.E.’s criminal history,
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Detective Masters did not include it in his affidavit because he did not think it was
relevant. When the police executed the warrant, they found several items that A.E.
had described, including two duffel bags containing clothes A.E. had worn while
stripping; a drug prescription for “Jessica Berry,” the name on A.E.’s false
identification; a rental car receipt for the Atlanta trip; and the trick phone.
The police also corroborated A.E.’s story by obtaining phone records that
included A.E.’s text messages with Whyte and Castro. The police matched the
trick phone with several Backpage.com ads posted for A.E. And the historical cell
site data from the trick phone revealed that it had moved from Whyte and Castro’s
townhome to Atlanta and near several strip clubs, as A.E. had described. When the
police interviewed Castro, she described A.E. as “very immature” and stated that
she “had questions about her age from almost the first time she met her.” Castro
also “believed A.E. might be lying about how old she was.”
In a superseding indictment, a grand jury indicted Whyte and Castro with
conspiracy to commit sex trafficking of a minor, 18 U.S.C. §§ 1591(a)(1), (b)(2),
(c), 1594(c); sex trafficking of a minor, id. §§ 1591(a)(1), (b)(2), (c); and
knowingly transporting A.E. from Florida to Georgia with the intent that A.E.
engage in prostitution, id. § 2421(a).
Before trial, Whyte and Castro moved to suppress the evidence obtained
pursuant to the search warrant. They argued that Detective Masters’s affidavit
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supporting the warrant omitted A.E.’s criminal history, which affected the
probable-cause determination. After conducting an evidentiary hearing about the
warrant, see Franks v. Delaware, 438 U.S. 154 (1978), the district court denied the
motion. The district court found Detective Masters “extremely credible” and “not
deliberate or reckless in omitting information in the affidavit.” And the district
court ruled that he “acted in objective good faith when applying for and executing
the search warrant.”
The government proceeded to trial on the theory that Whyte and Castro were
guilty of sex trafficking of a minor because they had a “reasonable opportunity to
observe” A.E., see 18 U.S.C. § 1591(c). The government argued that, although
section 1591(a) requires proof that a defendant knew or recklessly disregarded that
the victim had not attained the age of 18, section 1591(c) provides that the
government “need not prove that the defendant knew, or reckless disregarded” the
victim’s age when it proves that “the defendant had a reasonable opportunity to
observe the [victim].” Id. Whyte and Castro contended that the government needed
to prove that they knew or recklessly disregarded A.E.’s age and so a mistake-of-
age defense would preclude their convictions. On the second day of trial, the
district court agreed with the government that it needed to prove only that Whyte
and Castro had a reasonable opportunity to observe A.E. and need not prove that
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they knew or recklessly disregarded her age. In the light of this ruling, the court
concluded that mistake of age was not a defense.
The government presented testimony from A.E., her father, Detective
Masters, Agent Van Brunt, and other police officers who investigated the crimes.
The government also presented the recorded jailhouse phone calls between Whyte,
Castro, and A.E. And the government presented the phone records and historical
cell site data from the trick phone. Whyte and Castro presented a defense about
A.E. looking and acting like an adult, her willingness to engage in prostitution, and
her criminal history.
The government also presented evidence about A.E.’s travel from California
to Florida and the possible probation consequences for her. A.E. testified that
Weber coerced her to board the flight to Florida. And the government later elicited
testimony that A.E. informed the California court in her probation hearing that she
had not left voluntarily and that the court found A.E. had not violated her
probation. Castro sought to cross-examine A.E. about whether she lied in her
probation hearing about leaving California involuntarily. The government
objected, and the district court sustained on relevance grounds. Castro later cross-
examined A.E. about the possible “15-year prison sentence hanging over [her]
head.” And Castro asked A.E., “Isn’t it true that the only reason you’re here
testifying is so that you don’t get violated on your probation?”
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After closing argument, the district court instructed the jury that it could find
Whyte and Castro guilty of sex trafficking of a minor and conspiracy to commit
sex trafficking of a minor if it found that the defendants had a “reasonable
opportunity to observe” the minor victim A.E. For the conspiracy charge, the
district court instructed that the second element of a conspiracy is “[t]hat the
Defendant knew the unlawful purpose of the plan and willfully joined in it.” It
defined the term “willfully” as “mean[ing] that the act was committed voluntarily
and purposely, with the intent to do something the law forbids; that is, with the bad
purpose to disobey or disregard the law.” For the sex trafficking charge, the district
court instructed that “[i]t is a federal crime for anyone . . . to recruit, entice, harbor,
transport, provide, obtain or maintain by any means, a person, knowing or in
reckless disregard of the fact that the person . . . would be caused to engage in a
commercial sex act.” The court then listed facts that the jury must find, but that list
did not include “that the person . . . would be caused to engage in a commercial sex
act” as an element. The jury found Whyte and Castro guilty of all charges.
A probation officer prepared presentence investigation reports for Whyte
and Castro. The probation officer calculated Whyte’s and Castro’s base offense
levels as 30. See United States Sentencing Guidelines Manual § 2G1.3(a)(2) (Nov.
2016). The probation officer then applied three two-level enhancements for unduly
influencing a minor to engage in prohibited sexual conduct, id. § 2G1.3(b)(2)(b);
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using a computer to offer prohibited sexual conduct with a minor, id. §
2G1.3(b)(3)(B); and for an offense involving the commission of a commercial sex
act, id. § 2G1.3(b)(4)(A). The reports did not include a two-level reduction for
acceptance of responsibility. With the enhancements, Whyte and Castro had total
offense levels of 36. Whyte’s prior convictions yielded 11 criminal-history points.
The probation officer also included two more points because Whyte committed the
offenses while on probation. With a criminal history category of VI and an offense
level of 36, the probation officer calculated Whyte’s guideline range as 324 to 405
months’ imprisonment. Castro had six criminal-history points. With a criminal
history category of III and an offense level of 36, the probation officer calculated
Castro’s guideline range as 235 to 293 months’ imprisonment.
Whyte and Castro raised several objections to their guideline calculations.
They objected to the enhancement for undue influence of a minor. Whyte and
Castro argued that a two-point reduction for acceptance of responsibility was
warranted because, although they went to trial, they contested only whether a
“reasonable opportunity to observe” A.E. was sufficient for their convictions.
Whyte and Castro objected to the enhancement for the commission of a
commercial sex act as double counting because the base offense level already
accounted for the commission of a commercial sex act. And Castro objected to the
enhancement for use of a computer on the ground that application note 4 required
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her to use a computer to communicate directly with A.E. but that she had used a
computer only to communicate with A.E.’s clients.
At their joint sentencing hearing, the district court denied the requested
reductions for acceptance of responsibility. The district court explained that,
although the reduction may be applied on “rare occasion[s]” when a defendant
goes to trial, it could not apply to Whyte and Castro because they disputed their
guilt and did not fully accept responsibility. The district court sustained Castro’s
objection to the enhancement for undue influence but applied it to Whyte. The
district court denied Castro’s objection to the use-of-a-computer enhancement
under section 2G1.3(b)(3)(B) based on United States v. Hill, 783 F.3d 842, 846
(11th Cir. 2015), which held that application note 4 does not apply to the
enhancement under that subsection. The district court also denied their objection
that the commercial-sex-act enhancement amounted to double counting. The
district court then calculated Whyte’s guideline range as 324 to 405 months,
consistent with the presentence investigation report. Without the undue-influence
enhancement, the district court reduced Castro’s offense level to 34 and calculated
her guideline range as 188 to 235 months.
After considering the statutory sentencing factors, 18 U.S.C. § 3553(a), the
district court sentenced Whyte to 300 months of imprisonment. It ruled that “the
fact that the government can’t prove that Mr. Whyte knew that A.E. was a minor is
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a mitigating circumstance.” It also ruled that Whyte’s criminal-history category of
VI with only 13 points “overrepresented” his criminal history, so the court treated
Whyte as if he was in category V with a guideline range of 292 to 365 months. The
district court explained that it had sentenced similar defendants to life in prison for
similar section 1591 offenses, so no significant disparity would occur from a 300-
month sentence. The district court also considered Whyte’s family support as a
mitigating circumstance. After explaining that “it’s important to impose a sentence
that promotes respect for the law, that acts as a deterrent so that other individuals
don’t just blindly go along and pimp young girls,” the district court “weigh[ed] the
aggravating and mitigating circumstances” to find “that a sentence near the low
end of the guideline range is appropriate,” and it imposed a sentence near the
bottom of Whyte’s range as adjusted for the lower criminal-history category.
The district court sentenced Castro to 188 months of imprisonment after
again considering the statutory sentencing factors. It reiterated that the failure of
the government to prove that Castro knew A.E.’s age qualified as a mitigating
circumstance. The district court explained that it had “imposed sentences on
similar situations way over ten years in prison.” It “weigh[ed] the aggravating and
mitigating circumstances” in favor of “a sentence at the low end of the guideline
range” and imposed the lowest sentence within that range.
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II. STANDARDS OF REVIEW
Several standards of review govern this appeal. We review the legal
interpretation of a criminal statute de novo, United States v. Williams, 790 F.3d
1240, 1244 (11th Cir. 2015), including whether it is unconstitutionally vague,
United States v. Wayerski, 624 F.3d 1342, 1347 (11th Cir. 2010). When a party
failed to object to a jury instruction at trial, we review for plain error. United States
v. Felts, 579 F.3d 1341, 1343 (11th Cir. 2009). We review a denial of a motion to
suppress under a mixed standard of review; we review factual findings for clear
error, construing the evidence in the light most favorable to the government, and
legal conclusions de novo. United States v. Burgest, 519 F.3d 1307, 1309 (11th Cir.
2008). We review a limitation on cross-examination for abuse of discretion. United
States v. Jeri, 869 F.3d 1247, 1262 (11th Cir. 2017). We review the interpretation
of the Sentencing Guidelines de novo and any underlying factual findings for clear
error. United States v. Moran, 778 F.3d 942, 959 (11th Cir. 2015). We review
whether the district court imposed a substantively reasonable sentence for abuse of
discretion. United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2007) (en banc).
III. DISCUSSION
We divide our discussion in five parts. First, we explain that section 1591
permitted the government to convict Whyte and Castro by proving that they had a
reasonable opportunity to observe A.E. instead of by proving that they either knew
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or recklessly disregarded A.E.’s age. Second, we explain that the district court
committed no plain error in its jury instructions. Third, we explain that the district
court did not err when it denied Whyte and Castro’s motion to suppress because
they failed to establish that Detective Masters omitted A.E.’s criminal history
deliberately or with a reckless disregard for its materiality. Fourth, we reject
Castro’s argument that the limitation on her cross-examination of A.E. violated her
confrontation right. Fifth, we explain that the district court correctly calculated
Whyte’s and Castro’s guideline ranges and imposed substantively reasonable
sentences.
A. Section 1591 Permits the Government to Prove Only that Whyte and
Castro had a “Reasonable Opportunity to Observe” A.E.
Whyte and Castro challenge their convictions for sex trafficking of a minor
on the ground that the district court misinterpreted section 1591 as permitting the
government to prove only that they had a “reasonable opportunity to observe” A.E.
They contend that section 1591 requires proof that they either knew or recklessly
regarded A.E.’s age. Whyte and Castro contend that this misinterpretation led to a
deficient indictment, erroneous jury instructions, and the erroneous preclusion of
their mistake-of-age defense. Castro also argues that a “reasonable opportunity to
observe” standard is unconstitutionally vague. These arguments fail.
Section 1591(a)(1) defines the following offense: “Whoever
knowingly . . . recruits, entices, harbors, transports, provides, obtains, advertises,
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maintains, patronizes, or solicits by any means a person . . . knowing, or, . . . in
reckless disregard of the fact . . . 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 . . . .” 18 U.S.C. § 1591(a)(1) (effective language since May 29, 2015)
(emphasis added). So under subsection (a)(1), the government must prove a
defendant’s mens rea as to the victim’s age by presenting evidence either that “the
defendant knew the child victim was a minor, or . . . the defendant recklessly
disregarded the fact that the child victim was a minor.” United States v. Duong,
848 F.3d 928, 933 (10th Cir. 2017). But subsection (c) provides an exception: “In a
prosecution under subsection (a)(1) in which the defendant had a reasonable
opportunity to observe the [victim], the Government need not prove that the
defendant knew, or recklessly disregarded the fact, that the person had not attained
the age of 18 years.” 18 U.S.C. § 1591(c).
Whyte and Castro argue that the government must always prove either actual
knowledge or reckless disregard of the victim’s age, which it failed to charge and
prove for them, but the plain language of subsection (c) forecloses that
interpretation. Framed as what the government “need not prove,” subsection (c)
relieves the government of its burden under subsection (a)(1) to prove knowledge
or reckless disregard of the victim’s age so long as it proves that the defendant had
a reasonable opportunity to observe the victim. Id. That is, subsection (c) means
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“that the government may prove that the defendant had a reasonable opportunity to
view the victim in lieu of proving knowledge” or reckless disregard. United States
v. Robinson, 702 F.3d 22, 31 (2d Cir. 2012). This interpretation “gives force to the
provision’s obvious goal—to reduce the government’s burden where the defendant
had a reasonable opportunity to observe the victim.” Id. at 32; see also Antonin
Scalia & Bryan A. Garner, Reading Law § 2, at 56 (2012) (explaining that “words
are given meaning by their context,” which includes the provision’s purpose as
“derived from the text”). Subsection (c) “supplies an alternative to proving any
mens rea with regard to the defendant’s awareness of the victim’s age.” Robinson,
702 F.3d at 32.
Whyte and Castro’s interpretation violates the surplusage canon. It is a
“cardinal rule that, if possible, effect shall be given to every clause and part of a
statute.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645
(2012) (citation omitted); see also Scalia & Garner, Reading Law § 26, at 174.
Under Whyte and Castro’s interpretation, subsection (c) “merely provides a way of
proving [the] knowledge” required by subsection (a) of actual knowledge or
reckless disregard. But that interpretation drains subsection (c) of all independent
effect: If proof of a reasonable opportunity to observe the victim offers only a way
of proving actual knowledge or reckless disregard of the victim’s age, then no
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effect can be given to the phrase “the Government need not prove.” 18 U.S.C.
§ 1591(c).
Whyte and Castro invoke the rule of lenity, which requires that persistent
ambiguity in criminal statutes be resolved in favor of the accused, but that rule has
no application when a statute is unambiguous. United States v. Jeter, 329 F.3d
1229, 1230 (11th Cir. 2003); see also Scalia & Garner, Reading Law § 49, at 301
(“[T]he rule of lenity has no application when the statute is clear.”). Section
1591(c) unambiguously provides that proof of a defendant’s reasonable
opportunity to observe the victim relieves the government of proving the mens rea
described in subsection (a).
Whyte and Castro rely on dictum in our caselaw interpreting an earlier
version of section 1591 that Congress has since abrogated. Before 2015,
subsection (c) described evidence of a defendant’s “reasonable opportunity to
observe” a minor victim as a substitute for proof of what “the defendant knew”
about the victim’s age. See 18 U.S.C. § 1591(c) (effective language Dec. 23, 2008,
to May 28, 2015) (When “a defendant had a reasonable opportunity to observe the
[victim], the Government need not prove that the defendant knew that the person
had not attained the age of 18 years.”). This Court interpreted that earlier version
of subsection (c) as meaning that, when “the defendant had a reasonable
opportunity to observe the victim, [the government] need prove only that he
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recklessly disregarded the fact that she was under the age of eighteen, not that the
defendant knew she was.” Mozie, 752 F.3d at 1282. That is, we read the earlier
version of subsection (c) as governing when the government may proceed under a
theory of reckless disregard instead of actual knowledge. But that interpretation
was dictum because it was “not necessary to deciding the case then before us.”
Fresh Results, LLC v. ASF Holland, B.V., 921 F.3d 1043, 1049 (11th Cir. 2019)
(citation and internal quotation marks omitted). Because Mozie’s victims testified
that they told him their ages, we held that the government satisfied its burden of
proving that Mozie knew his victims’ ages. See Mozie, 752 F.3d at 1286.
Our dictum in Mozie conflicted with an interpretation of subsection (c) by
the Second Circuit. See Robinson, 702 F.3d at 31–32. In Robinson, the Second
Circuit held that proof of a reasonable opportunity to observe the victim is a
“substitute for proof that the defendant knew the victim’s underage status.” Id. at
32. And the Second Circuit reasoned that the reference in subsection (c) to what
the defendant “knew” referred to the mens rea element of subsection (a), which
included both actual knowledge and reckless disregard. See id. at 31–32.
When Congress amended section 1591 in 2015, it adopted the interpretation
by the Second Circuit in Robinson by adding reckless disregard to subsection (c).
See Justice for Victims of Trafficking Act of 2015, Pub. L. 114-22, § 108(a)(3)(B),
129 Stat. 227, 239 (codified at 18 U.S.C. § 1591(c): When “the defendant had a
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reasonable opportunity to observe the [victim], the Government need not prove
that the defendant knew, or recklessly disregarded the fact, that the person had not
attained the age of 18 years.” (emphasis added)). With this amendment, Congress
made clear that, when the government proves that the defendant had a reasonable
opportunity to observe the victim, it need not prove either actual knowledge or
reckless disregard. So this statutory change would supersede our interpretation in
Mozie even if it were not dictum. See United States v. Zlatogur, 271 F.3d 1025,
1028 n.1 (11th Cir. 2001). As a result, we join our sister circuits in holding that
section 1591(c) unambiguously creates an independent basis of liability when the
government proves a defendant had a reasonable opportunity to observe the victim.
See Duong, 848 F.3d at 931; Copeland, 820 F.3d at 813; Robinson, 702 F.3d at 31–
32. Proof that a defendant had a “reasonable opportunity to observe” the victim
relieves the government of its burden of proving that the defendant either knew or
recklessly disregarded the victim’s age.
Our recent decision in United States v. Blake, 868 F.3d 960, 976 (11th Cir.
2017), is not to the contrary. In Blake, we explained that, “[u]nder 18 U.S.C.
§ 1591(c), in order to prove knowledge for purposes of § 1591(a), the government
did not need to prove that [the defendant] had actual knowledge that [the victim]
was underage; it needed to prove only that [the defendant] had a ‘reasonable
opportunity’ to observe [the victim].” Id. at 976 (emphases added). After
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recounting the evidence, we concluded that the defendant had a reasonable
opportunity to observe the victim, “which, under § 1591(c), satisfied § 1591(a)’s
knowledge requirement.” Id.
Because section 1591 permitted the government to convict Whyte and
Castro by proving that they had a reasonable opportunity to observe A.E., Whyte
and Castro’s other arguments based on their mistaken interpretation fail. The
indictment and jury instructions omitted no essential element by including the
element of a reasonable opportunity to observe A.E. instead of knowledge or
reckless disregard of her age. And they were not entitled to a mistake-of-age
defense or an instruction about it because, when the government proceeds on the
theory that a defendant had a reasonable opportunity to observe the victim, his
mistake about the victim’s age is no defense. See United States v. Deverso, 518
F.3d 1250, 1257 (11th Cir. 2008) (explaining that a defendant has no right to a
mistake-of-age defense or instruction when “knowledge of [the victim’s] age is not
an element of [the] offense”).
Whyte and Castro alternatively argue that section 1591 impermissibly
imposes strict liability, but we disagree. Section 1591 “does not actually impose
‘strict liability’ because the statute, throughout its revisions, has retained a
traditional scienter requirement” of knowledge that the victim “will be caused to
engage in a commercial sex act.” Copeland, 820 F.3d at 812 n.6 (quoting 18
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U.S.C. § 1591(a)). Our interpretation “concerns only scienter as to the victim’s
age, which is distinct from the Government’s independent burden of proving
beyond a reasonable doubt that a defendant was knowingly involved in a
commercial sex act.” Id. As Whyte acknowledges, Congress may dislodge the
presumption that an element requires proof of a culpable mental state, see Bond v.
United States, 572 U.S. 844, 857 (2014), and in section 1591(c), Congress clearly
“impose[d] strict liability with regard to the defendant’s awareness of the victim’s
age,” Robinson, 702 F.3d at 26; see also United States v. X-Citement Video, Inc.,
513 U.S. 64, 72 n.2 (1994) (highlighting that, when “the perpetrator confronts the
underage victim personally,” he “may reasonably be required to ascertain the
victim’s age”). And many federal statutes that protect children “use nearly
identical language and . . . have been interpreted to ‘lack mens rea requirements
with respect to the victim’s age.’” Robinson, 702 F.3d at 33 (alterations adopted)
(quoting United States v. Jennings, 496 F.3d 344, 353 (4th Cir. 2007)) (collecting
statutes and cases that construe them “as disclaiming mens rea requirements with
respect to the victim’s age”). The district court correctly interpreted section 1591 as
permitting the government to prove only that Whyte and Castro had a reasonable
opportunity to observe A.E.
Castro argues that the “undefined and elusive concept” of a “reasonable
opportunity to observe” is unconstitutionally vague, but our precedent forecloses
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this argument. The Supreme Court has ruled that a statute must afford “a person of
ordinary intelligence fair notice that his contemplated conduct is forbidden by the
statute.” Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (citation
and internal quotation marks omitted). We have held that the standard “reasonable
opportunity to observe” is not unconstitutionally vague. See Mozie, 752 F.3d at
1282. As we explained, the argument “that an ordinary person would not
understand what qualifies as . . . a ‘reasonable opportunity to observe’ runs counter
to centuries of jurisprudence; those terms are familiar legal concepts that have
played an integral role in defining proscribed conduct over the years.” Id. at 1283.
Although the 2015 amendments to section 1591 abrogated our interpretation of the
interplay between subsections (a) and (c) in Mozie, the “reasonable opportunity to
observe” standard has not changed, so our holding in Mozie rejecting a vagueness
challenge to it remains binding precedent. See United States v. Duncan, 400 F.3d
1297, 1305 (11th Cir. 2005) (explaining that the unaffected holdings of a partially
abrogated decision remain binding under the prior-panel-precedent rule).
Castro’s argument about vagueness also fails as applied to the facts of her
case. We have held that “five or six interactions,” including the “considerable
interaction” of a 20-minute erotic photo session, provided a defendant with a
reasonable opportunity to observe the victim. See Blake, 868 F.3d at 976. Far
exceeding the five or six interactions that we held were sufficient in Blake, Castro
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had many opportunities to observe A.E. during the nearly two months when A.E.
lived with Whyte and Castro. During this time, they ate meals, watched television,
and went shopping together. Castro responds that A.E. never told her that she was
under 18 and engaged in many adult activities, including smoking marijuana,
spending the night with men, and not “answering to any parental figures.” But that
A.E. never told Castro her age does not inform the reasonableness of Castro’s
opportunities to observe A.E. Castro had opportunities to observe A.E. on an
intimate level for long periods. Because Castro clearly had a “reasonable
opportunity to observe” A.E., her vagueness challenge to section 1591(c) fails.
B. The Jury Instructions About a Commercial Sex Act and Willfulness Were
Not Plainly Erroneous.
Castro argues that the jury instructions failed to explain the element of
willfulness for her conspiracy charge and omitted an element for her sex
trafficking charge. Because she did not raise these objections at trial, we review for
plain error. See Felts, 579 F.3d at 1343–44. To establish plain error, a defendant
must prove “(1) error, (2) that is plain, and (3) that affects substantial rights,” and
even then, we may “exercise [our] discretion to notice [the] forfeited error . . . only
if [it] seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005)
(citation and internal quotation marks omitted). When we “review[] a jury
instruction under the plain error standard, we will reverse only in exceptional
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cases,” which ordinarily requires a defendant “to establish that the challenged
instruction was an incorrect statement of the law and that it was probably
responsible for an incorrect verdict, leading to substantial injustice.” Montgomery
v. Noga, 168 F.3d 1282, 1294 (11th Cir. 1999) (citations and internal quotation
marks omitted). Castro cannot establish plain error for either instruction.
The district court instructed the jury that the second element of a conspiracy
is “[t]hat the Defendant knew the unlawful purpose of the plan and willfully joined
in it.” It also defined the term “willfully” as “mean[ing] that the act was committed
voluntarily and purposely with the intent to do something the law forbids; that is,
with the bad purpose to disobey or disregard the law.” And it explained that
“[w]hile a person must have acted with the intent to do something the law forbids
before you can find that the person acted willfully, the person need not be aware of
the specific law or rule that his or her conduct may be violating.” These
instructions mirror our pattern jury instructions, see 11th Cir. Pattern Jury Instr.
(Crim.) B9.1A (2016), and the Supreme Court’s explanation of willfulness, see
Bryan v. United States, 524 U.S. 184, 191–95 (1998).
Castro argues that the instruction should have included knowledge of the
victim’s age as an element of the conspiracy because she could not willfully
agree to commit sex trafficking of a minor if she did not know A.E. was a
minor, but we disagree. The Supreme Court has rejected a similar argument that
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a charge of “conspiracy to commit assault on a federal officer” requires
knowledge that the victim was a federal officer. See United States v. Feola, 420
U.S. 671, 696 (1965). In Feola, the Supreme Court explained that, because the
substantive offense does not require knowledge of the victim’s status as a
federal agent, a “greater scienter requirement can[not] be engrafted upon the
conspiracy offense, which is merely an agreement to commit [that] act.” Id. at
676; see also id. at 686, 696. Like Feola, Castro’s offense of sex trafficking of a
minor does not require knowledge of the victim’s status as a minor, so she
cannot import such a requirement into her conspiracy offense. See also United
States v. Duran, 596 F.3d 1283, 1296 (11th Cir. 2010) (acknowledging “the
longstanding and uniformly recognized rule” that a conspiracy charge “does not
impose its scienter requirement upon the [substantive] offense that is the object
of the conspiracy”).
Castro also argues that the instruction for sex trafficking of a minor omitted
the element of a “commercial sex act.” A district court must “instruct the jury on
all the essential elements of the crime charged,” including identifying those
essential elements as such. United States v. Herzog, 632 F.2d 469, 472 (5th Cir.
1980) (emphasis added). The district court failed to identify the essential element
of knowledge or reckless disregard that A.E. would be caused to commit a
commercial sex act in its numbered list of facts for the jury to find. But “[t]he
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failure to instruct the jury on an essential element of the offense charged does not
always amount to reversible ‘plain error.’” Id. We must consider “the totality of the
charge as a whole” and determine “whether the potential harm caused by the jury
charge has been neutralized by the other instructions given at the trial such that
reasonable jurors would not have been misled by the error.” United States v.
Duncan, 855 F.2d 1528, 1532 (11th Cir. 1988) (citation and internal quotation
marks omitted).
In the light of the entirety of the instructions given, the omission of the
element of a commercial sex-act from the numbered list did not constitute plain
error. Immediately before the numbered list of elements, the instruction for the
sex-trafficking count included that “[i]t is a federal crime for anyone . . . to recruit,
entice, harbor, transport, provide, obtain or maintain by any means, a person,
knowing or in reckless disregard of the fact that the person . . . would be caused to
engage in a commercial sex act.” A definition of a “commercial sex act” followed
the numbered list. And the instruction for the conspiracy count included the
element in its numbered list of facts that the jury must find. Taken as a whole, the
instructions addressed the element of knowledge that A.E. would be caused to
engage in a commercial sex act. And the district court provided the jury with a
copy of the indictment—which included knowledge that A.E. would be caused to
engage in a commercial sex act as an element of the sex trafficking of a minor
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charge—during deliberations. See United States v. Slaughter, 238 F.3d 580, 583–
84 (5th Cir. 2000) (holding that a jury instruction that omitted an element did not
constitute plain error when “the jury had the counts of the indictments in the jury
room during deliberations”). So any potential harm caused by failing to include the
element in the numbered list was cured by providing the other instructions and the
indictment to the jury.
C. The District Court Did Not Err in Denying the Motion to Suppress.
Whyte and Castro argue that the district court erred when it denied their
motion to suppress because Detective Masters’s affidavit supporting the search
warrant omitted A.E.’s criminal history. An affidavit supporting a search warrant is
presumed valid. Franks, 438 U.S. at 171. To obtain suppression of evidence
discovered pursuant to a warrant, a defendant must overcome that presumption by
proving that the affiant made misrepresentations or omissions deliberately or with
a reckless disregard for the truth and that the affiant’s misrepresentations or
omissions materially affected the probable-cause determination. See id. at 171–72;
see also United States v. Novaton, 271 F.3d 968, 986–87 (11th Cir. 2001)
(applying the Franks standard to omissions). Omissions made negligently or
because of an innocent mistake are insufficient to warrant suppression of the
evidence. See Franks, 438 U.S. at 171–72.
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Whyte and Castro are not entitled to suppression because they failed to
argue that the affiant, Detective Masters, omitted material facts deliberately or with
a reckless disregard for the truth. Besides a barebones assertion that “law
enforcement intentionally, or at least recklessly, omitted numerous material facts,”
Whyte and Castro provided no argument in their opening briefs that Detective
Masters acted deliberately or with a reckless disregard when he omitted A.E.’s
criminal history from his affidavit, so they have abandoned this contention.
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We
have long held that an appellant abandons a claim when he either makes only
passing references to it or raises it in a perfunctory manner without supporting
arguments and authority.”). Without an argument that Detective Masters acted
deliberately or with a reckless disregard, Whyte and Castro had no right to
suppression under Franks. See United States v. Haimowitz, 706 F.2d 1549, 1556
(11th Cir. 1983) (rejecting a Franks challenge when a defendant made only
“conclusory allegations, unsupported by an offer of proof”).
In her reply brief, Castro suggests that she argued Detective Masters acted
deliberately because he knew A.E.’s criminal history and did not include that
information since it did not seem relevant. But Castro misunderstands what she had
to prove. For an affirmative misrepresentation in an affidavit, deliberateness refers
to a “deliberate falsehood”—not any action done intentionally. See Franks, 438
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U.S. at 171. So for an omission, deliberateness must also refer to something akin to
bad faith on the part of the affiant—not merely that the affiant knew some
information and did not include it. Cf. id.; see also Novaton, 271 F.3d at 988
(finding no deliberateness or reckless disregard when an officer knew an
informant’s criminal history but omitted it from his affidavit). In other words, the
omission must have been made with the purpose of misleading the judge issuing
the warrant. Detective Masters’s awareness of A.E.’s criminal history and decision
not to include it in his affidavit is not enough to prove he acted “deliberately” for a
Franks violation. Whyte and Castro failed to argue that Detective Masters
deliberately omitted A.E.’s criminal history to mislead the judge.
D. The Limitation on Castro’s Cross-Examination of A.E. Did Not Violate
Castro’s Right of Confrontation.
The Sixth Amendment affords a criminal defendant a right to confront
witnesses against him that includes the right of cross-examination, but “the
defendant’s right to cross-examine witnesses is not without limitation.” Jeri, 869
F.3d at 1262 (alteration adopted) (citations and internal quotation marks omitted).
A defendant “is entitled only to an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the
defense might wish.” Id. (citation and internal quotation marks omitted). So a
“district court retains ‘wide latitude’ to ‘impose reasonable limits on such cross-
examination based on concerns about, among other things, harassment, prejudice,
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confusion of the issues, the witness’s safety, or interrogation that is repetitive or
only marginally relevant.’” Id. (alteration adopted) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986)). To decide whether a limitation on cross-
examination violated the Confrontation Clause, we consider “whether a reasonable
jury would have received a significantly different impression of the witness’
credibility had counsel pursued the proposed line of cross-examination.” United
States v. Diaz, 26 F.3d 1533, 1539–40 (11th Cir. 1994) (citation and internal
quotation marks omitted).
Castro argues that she should have been able to cross-examine A.E. about
whether she lied in her probation hearing to avoid imprisonment. On direct
examination, A.E. testified that she traveled from California to Florida at the
behest of Marcus Weber and that she had been found not in violation of her
probation for leaving California. Castro sought to cross-examine A.E. about
whether her statement at the hearing that she left California involuntarily was a lie.
According to Castro, this testimony would have impeached A.E.’s credibility by
establishing that A.E. cooperated with the government only to avoid a lengthy
prison sentence for violating her probation. The district court prevented this line of
cross-examination based on relevance.
Although the district court barred Castro from specifically asking A.E.
whether she lied about how she got to Florida to avoid a probation violation, this
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lone limitation did not deny Castro “an opportunity for effective cross-
examination,” which is all that the Sixth Amendment guarantees. See Jeri, 869
F.3d at 1262 (citation and internal quotation marks omitted). Whether A.E. lied
that she left California involuntarily bears on her credibility, but “the mere fact that
[Castro] sought to explore bias on the part of a prosecution witness does not
automatically void the court’s ability to limit cross-examination.” Diaz, 26 F.3d at
1540. Castro explored A.E.’s bias and credibility during the nearly two-day cross-
examination of A.E. Castro elicited testimony from A.E. admitting to the jury that
she had “lied plenty of times in the past” to police officers and others. Notably, the
district court later permitted Castro to cross-examine A.E. about her motivation for
cooperating with the government. Castro cross-examined A.E. about the possible
“15-year prison sentence hanging over [her] head.” And Castro asked A.E., “Isn’t
it true that the only reason you’re here testifying is so that you don’t get violated
on your probation?” So the testimony that Castro sought to elicit about A.E.’s
motivation for cooperating with the government would have been cumulative. No
“reasonable jury would have received a significantly different impression of
[A.E.’s] credibility had” Castro pursued the specific line of questioning about
whether A.E. lied about how she got to Florida in her probation hearing to avoid
imprisonment. Id. at 1539–40 (citation and internal quotation marks omitted).
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E. The District Court Did Not Err when It Sentenced Whyte and Castro.
Whyte and Castro raise two challenges to their sentences. First, they argue
that the district court erroneously applied three enhancements and declined to
apply a reduction in calculating their guideline ranges. Second, they argue that the
district court imposed substantively unreasonable sentences. Both arguments fail.
1. The District Court Did Not Err when It Applied Three Enhancements and
Declined to Apply a Reduction.
Whyte argues that he should have received a two-point reduction for
acceptance of responsibility. To receive that reduction, a defendant must “clearly
demonstrate[] acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a).
“The reduction may be available, in a rare case, even when the defendant proceeds
to trial,” United States v. Spoerke, 568 F.3d 1236, 1251 (11th Cir. 2009), such as
when a defendant “assert[s] and preserve[s] issues that do not relate to factual
guilt,” U.S.S.G. § 3E1.1(a) cmt. n.2. But the reduction “is not intended to apply to
a defendant who puts the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only then admits guilt and
expresses remorse.” U.S.S.G. § 3E1.1(a) cmt. n.2. For example, the reduction did
not apply when, “in addition to his challenge to the constitutionality of the
Firearms Act,” a defendant challenged whether “pipe bombs were destructive
devices” prohibited by the Act. Spoerke, 568 F.3d at 1252.
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Whyte is not entitled to a reduction for acceptance of responsibility because
he contested a factual element of guilt by arguing that he never had a “reasonable
opportunity to observe” A.E. Whether a defendant had a “reasonable opportunity
to observe” the victim depends on the facts of that particular defendant’s
interactions with that victim. By arguing that he had no reasonable opportunity to
observe A.E. because she looked and acted like an adult, Whyte put the
government to its burden of proof at trial on this issue. That is, Whyte never
accepted responsibility for his conduct; to the contrary, he always contested that he
was not responsible for sex trafficking of a minor because a reasonable person
would observe A.E. and conclude that she was over 18. So the district court did not
err when it denied an acceptance-of-responsibility reduction.
Whyte next argues that the district court erred when it applied an undue-
influence enhancement. The undue-influence enhancement applies to “a participant
[who] otherwise unduly influenced a minor to engage in prohibited sexual
conduct.” U.S.S.G. § 2G1.3(b)(2)(B). We “closely consider the facts of the case to
determine whether a participant’s influence over the minor compromised the
voluntariness of the minor’s behavior.” Id. § 2G1.3 cmt. n.3(b). Because Whyte is
ten years older than A.E., we apply a rebuttable presumption that he unduly
influenced A.E. Id. To decide whether he rebuts this presumption, we “may
consider whether his conduct displayed an abuse of superior knowledge, influence
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and resources.” Blake, 868 F.3d at 977 (alteration adopted) (citation and internal
quotation marks omitted). A defendant abuses his superior knowledge and
resources by managing his victim’s prostitution through actions like advertising
her services, driving her to engagements, and handling the money. See id. Because
undue influence is a factual finding, we review for clear error. See id.
Whyte failed to rebut the presumption that he unduly influenced A.E.
because he abused his superior knowledge, influence, and resources to facilitate
her prostitution. Whyte managed A.E.’s prostitution by posting Backpage.com ads
and communicating with her clients on the trick phone. And Whyte used his
resources to facilitate A.E.’s engagements. Whyte obtained a false identity for A.E.
so that she could work at strip clubs, where he also instructed her to pick up
clients. Whyte drove A.E. to her engagements and collected her money when she
was done. And Whyte exerted influence over A.E.; when A.E. ran away, Whyte
persuaded A.E. to return by playing on her emotions, calling them a “family.”
Whyte contends that the undue-influence enhancement could not apply
because A.E. had already worked as an escort when she met him, but we disagree.
That a minor has engaged in previous acts of prostitution does not foreclose that a
defendant may have unduly influenced her to engage in further acts of prostitution.
The district court did not clearly err when it found that Whyte unduly influenced
A.E. to engage in further acts of prohibited sexual conduct.
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Whyte and Castro argue that the district court erred when it applied an
enhancement for the use of a computer based on their use of smart-phones to
communicate with A.E.’s clients. Because Whyte did not object to this
enhancement, we review his claim for plain error. Felts, 579 F.3d at 1343. Section
2G1.3(b)(3)(B) provides a two-level enhancement when “the offense involved the
use of a computer” to “entice, encourage, offer, or solicit a person to engage in
prohibited sexual conduct with the minor.” U.S.S.G. § 2G1.3(b)(3)(B). The parties
agree that a smart-phone qualifies as a computer.
Castro contends that, based on application note 4, the enhancement should
not apply because she did not use a computer to communicate directly with A.E. or
a person exercising custody or control over A.E., but her reliance on application
note 4 is misplaced. Application note 4 provides that the enhancement “is intended
to apply only to the use of a computer or an interactive computer service to
communicate directly with a minor or with a person who exercises custody, care,
or supervisory control of the minor.” Id. § 2G1.3 cmt. n.4.
This Court has held that application note 4 is not authoritative for an
enhancement under section 2G1.3(b)(3)(B) of the Guidelines because it is “a
plainly erroneous reading of th[e] guideline.” Hill, 783 F.3d at 844–45. We
explained that the application note purports to exclude conduct that clearly falls
within the ambit of the plain language of section 2G1.3(b)(3)(B). For example, in
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Hill, a defendant used a computer “to solicit a person to engage in prohibited
sexual conduct with a minor” when he sent explicit photos of minors to a cohort to
post in online prostitution ads. See id. But the application note would have barred
the enhancement because the defendant sent the photos only to a cohort, not to a
minor or a person exercising control over the minor. We joined several of our sister
circuits in holding “that the application note is patently inconsistent with the
guideline.” Id. at 845; see also United States v. Cramer, 777 F.3d 597, 604 (2d Cir.
2015); United States v. McMillian, 777 F.3d 444, 450 (7th Cir. 2015); United
States v. Pringler, 765 F.3d 445, 454–56 (5th Cir. 2014). And we concluded that
the application note was a drafting error based on the drafting history of the
enhancement. See Hill, 783 F.3d at 845–46 (explaining that application note 4
“was only intended to apply to the situation posited in [section 2G1.3(b)(3)(A)]”
(citation and internal quotation marks omitted)). We held that “the plain language
of the guideline controls” for an enhancement under section 2G1.3(b)(3)(B), and
the use of a “cellphone to place online ads offering young girls for prohibited
purposes” “fall[s] squarely within the language of the enhancement.” Id. at 846.
After Hill, two other circuits have held that application note 4 is inconsistent with
the plain language of section 2G1.3(b)(3)(B). See United States v. Houston, 857
F.3d 427, 435 (1st Cir. 2017); United States v. Gibson, 840 F.3d 512, 514 (8th Cir.
2016). Hill disposes of Castro’s argument that the enhancement cannot apply
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because she did not use a computer to communicate directly with A.E. or a person
exercising control over A.E.
Castro urges us to disregard Hill. She contends that the Sentencing
Commission is presumed to be aware of controlling precedent that affects the
Guidelines and, despite Hill and the decisions of our sister circuits, application
note 4 remains unchanged in the current Guidelines.
Castro’s argument fails for two reasons. First, we cannot disregard Hill
because we are bound by it under the prior-panel-precedent rule. See United States
v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc) (“Under our prior
precedent rule, a panel cannot overrule a prior one’s holding even though
convinced it is wrong.”); see also id. at 1318 (“The law of this circuit is ‘emphatic’
that only the Supreme Court or this court sitting en banc can judicially overrule a
prior panel decision.” (quoting Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.
1997)). Of course, “a significant change in language is presumed to entail a change
in meaning.” Scalia & Garner, Reading Law § 40, at 256. But we cannot indulge
Castro’s converse argument that no change in the language of application note 4
after Hill means that the Sentencing Commission presumed to entail a change in
meaning—that is, to contradict Hill’s interpretation. Second, the Commission has
not ignored this problem. The 2018 amendments to the Guidelines amended
application note 4, and after citing the decisions addressing the problem, the
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Commission explained that application note 4 does not apply to an enhancement
under section 2G1.3(b)(3)(B). See United States Sentencing Commission,
Amendments to the Sentencing Guidelines 80 (Apr. 30, 2018). So the Sentencing
Commission has validated our interpretation in Hill.
When we set aside application note 4 as Hill requires us to do, it is clear that
Whyte and Castro used a computer to “entice, encourage, offer, or solicit a person
to engage in prohibited sexual conduct” with A.E. U.S.S.G. § 2G1.3(b)(3)(B). Both
Whyte and Castro used a computer to solicit clients for A.E. when they posted
Backpage.com ads for A.E.’s prostitution, which this Court has explained falls
squarely within the enhancement. Hill, 783 F.3d at 846 (holding that posting online
ads for the prostitution of a minor qualifies for the enhancement). The district court
did not err by applying the use-of-computer enhancement to Whyte and Castro.
Castro argues that her enhancement for the commission of a sex act amounts
to double counting, but precedent forecloses this argument. “Impermissible double
counting occurs only when one part of the Guidelines is applied to increase a
defendant’s punishment on account of a kind of harm that has already been fully
accounted for by application of another part of the Guidelines.” Blake, 868 F.3d at
977 (quoting United States v. Matos-Rodriquez, 188 F.3d 1300, 1309 (11th Cir.
1999)). According to Castro, section 1591 punishes the commission of a sex act,
which factors into her base offense level, U.S.S.G. § 2G1.3(a), so the enhancement
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for the commission of a sex act punishes her twice for the same harm, id.
§ 2G1.3(b)(4)(A). This Court has held that applying the sex-act enhancement along
with the base offense level for a section 1591 offense does “not amount to
impermissible double counting” because they “punish different harms.” Blake, 868
F.3d at 977–78. In Blake, we explained that the sex-act enhancement “reaches only
offenses where a sex act or sexual conduct actually did occur,” but the substantive
offense of section 1591 requires only that the defendant “put the victim in a
position where a sex act could occur, regardless of whether a sex act eventually did
occur.” Id. at 977. So no double counting occurred when the district court applied
the sex-act enhancement to Castro.
2. The District Court Did Not Impose Substantively Unreasonable
Sentences.
When a defendant challenges his sentence as substantively unreasonable, we
review the steps that the district court took in making its sentencing decision
“through the prism of abuse of discretion.” Irey, 612 F.3d at 1190 (citation and
internal quotation marks omitted). To vacate a sentence for substantive
unreasonableness, we must be “left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the § 3553(a) factors
by arriving at a sentence that lies outside the range of reasonable sentences dictated
by the facts of the case.” Id. (citation and internal quotation marks omitted). “A
district court’s sentence need not be the most appropriate one, it need only be a
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reasonable one.” Id. at 1191. We ordinarily expect that a sentence within the
Guidelines is reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.
2008).
The district court did not abuse its discretion when it sentenced Whyte to
300 months of imprisonment. It conducted a thorough analysis of the statutory
sentencing factors and weighed them reasonably. The court considered the
circumstances of the offense, 18 U.S.C. § 3553(a)(1), when it accounted for the
absence of proof that Whyte knew A.E. was a minor. It also considered Whyte’s
characteristics, including his criminal history, id. Indeed, the court treated Whyte
as if he belonged in a lower criminal-history category after deciding that his
criminal-history category of VI overrepresented his criminal history. This ruling
led the district court to calculate a lower guideline range for Whyte. And the court
accounted for Whyte’s family support. The court then considered whether
unwarranted sentence disparities would result, id. § 3553(a)(6), but found none
because similar defendants had received life in prison for similar conduct. The
court also highlighted that it was important to impose a sentence that would act as
a deterrent and promote respect for the law, id. § 3553(a)(2). After “weigh[ing] the
aggravating and mitigating circumstances,” the court concluded “that a sentence
near the low end of the guideline range [was] appropriate.” Whyte’s sentence of
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300 months is near the bottom of his guideline range of 292 to 365 months with his
adjusted criminal-history category.
The district court did not abuse its discretion when it sentenced Castro to
188 months of imprisonment. It again reasonably weighed the relevant sentencing
factors. The district court took into account that the government did not prove that
Castro knew A.E.’s age as a mitigating circumstance. It considered Castro’s
history and characteristics when it included the negative effect of her incarceration
on her children as a mitigating circumstance. Castro argues that the district court
should have also considered her history of physical infirmities, including panic
attacks and seizures, but the court did not have to “specifically mention [every]
ground[] for variance that [Castro] argued.” United States v. Scott, 426 F.3d 1324,
1329 (11th Cir. 2005), abrogated on other grounds by Rita v. United States, 551
U.S. 338 (2007). The district court reasonably concluded that no unwarranted
disparity would result because it had sentenced similar defendants in “similar
situations [to] way over ten years in prison.” It reiterated the importance of
imposing a sentence that would act as a deterrent and promote respect for the law.
The court “weigh[ed] the aggravating and mitigating circumstances” not to warrant
a downward departure or variance but in favor of “a sentence at the low end of the
guideline range.” That sentence is not substantively unreasonable.
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Despite their sentences near the low end of their guideline ranges, Whyte
and Castro fault the district court for failing to account for the nature of the specific
offense. According to them, their offenses are atypical of sex trafficking of a minor
because they did not involve “a young woman being forced against her will to
engage in commercial sex acts.” They highlight that A.E. had already been a
prostitute before they met her, and they merely “befriended” A.E. by inviting her
to live with them.
The absence of force or threats is immaterial for their offenses. The
government charged Whyte and Castro with sex trafficking of a minor under
section 1591(b)(2), which does not require force. Had the government charged
them under section 1591(b)(1), which requires force or threats of force, they would
have been subject to a higher mandatory minimum sentence and base offense level,
see U.S.S.G. § 2G1.3(a)(1). Nor does A.E.’s prior prostitution and criminal history
make their case atypical. As Detective Masters testified, a victim of sex trafficking
often has a criminal history, and a “victim[] with baggage is par for the course” in
these cases. See also Blake, 868 F.3d at 978 (affirming 324-month sentence for
defendant who prostituted an underage girl who had sought to prostitute herself).
The district court imposed reasonable sentences.
IV. CONCLUSION
We AFFIRM the convictions and sentences of Whyte and Castro.
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