United States v. Randolph Spain , 666 F. App'x 313 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4692
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RANDOLPH JOHNSON SPAIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:14-cr-00021-F-1)
Submitted: November 21, 2016 Decided: December 20, 2016
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed in part, vacated in part and remanded by unpublished
per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, Acting United States Attorney,
Jennifer P. May-Parker, Barbara D. Kocher, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Randolph Johnson Spain of two
counts of interstate transportation of an individual for
purposes of prostitution, in violation of 18 U.S.C. § 2421(2012). The district court upwardly departed from the
Guidelines range and sentenced Spain to the statutory maximum of
240 months of imprisonment, and he now appeals. For the reasons
that follow, we affirm the convictions, but vacate the sentence
and remand.
Spain first challenges the sufficiency of the evidence for
the second count of conviction. We review a district court’s
decision to deny a Fed. R. Crim. P. 29 motion for a judgment of
acquittal de novo. United States v. Smith, 451 F.3d 209, 216
(4th Cir. 2006). A defendant challenging the sufficiency of the
evidence faces a heavy burden. United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997). In determining whether the
evidence is sufficient to support a conviction, we determine
“whether there is substantial evidence in the record, when
viewed in the light most favorable to the government, to support
the conviction.” United States v. Palacios, 677 F.3d 234, 248
(4th Cir. 2012) (internal quotation marks omitted). Substantial
evidence is “evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” Id. (internal
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quotation marks omitted). Furthermore, “[d]eterminations of
credibility are within the sole province of the jury and are not
susceptible to judicial review.” Id. (internal quotation marks
omitted).
Section 2421(a) prohibits knowingly transporting any
individual in interstate commerce with intent that such
individual engage in prostitution or any sexual activity that
constitutes a criminal offense. 18 U.S.C. § 2421(a). The
intent that the individual engage in prostitution, however, need
not be the defendant’s sole motivation for the interstate travel
where prostitution is the predominate purpose of the trip.
Dingess v. United States, 315 F.2d 238, 239 (4th Cir. 1963). We
have thoroughly reviewed the record and conclude that there was
sufficient evidence to support the jury’s verdict of guilt on
the second count.
Spain also argues that the district court erred in applying
a cross-reference under the Sentencing Guidelines and that this
error violated his Sixth Amendment right to a jury trial. We
review a sentence for abuse of discretion, determining whether
the sentence is procedurally and substantively reasonable.
United States v. Heath, 559 F.3d 263, 266 (4th Cir. 2009). In
so doing, we first examine the sentence for “significant
procedural error,” including “failing to calculate (or
improperly calculating) the Guidelines range, treating the
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Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2012)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence”. Gall v. United States, 552 U.S. 38, 51
(2007). We then “‘consider the substantive reasonableness of
the sentence imposed.’” United States v. Evans, 526 F.3d 155,
161 (4th Cir. 2008) (quoting Gall, 552 U.S. at 51).
In addition, in reviewing the district court’s calculations
under the Guidelines, “we review the district court’s legal
conclusions de novo and its factual findings for clear error.”
United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)
(internal quotation marks omitted). We will “find clear error
only if, on the entire evidence, we are left with the definite
and firm conviction that a mistake has been committed.”
Manigan, 592 F.3d at 631 (internal quotation marks omitted).
Section 2G1.1(c) of the Guidelines provides that a district
court should apply U.S. Sentencing Guidelines § 2A3.1 (2015) in
determining the offense level if the offense involved conduct
described in 18 U.S.C. § 2242 (2012). USSG § 2G1.1(c). A
defendant is guilty of violating § 2242 if he knowingly causes
another person to engage in a sexual act by threatening or
placing that other person in fear. 18 U.S.C. § 2242(1). Based
on our review of the record, we conclude that the district court
did not err in applying this cross-reference in calculating the
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advisory Guidelines range. Moreover, as Spain concedes in his
reply brief, his constitutional argument is foreclosed by
binding circuit precedent. See United States v. Benkahla, 530
F.3d 300, 312 (4th Cir. 2008) (“Sentencing judges may find facts
relevant to determining a Guidelines range by a preponderance of
the evidence, so long as that Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized by
the jury’s verdict.”).
Finally, Spain argues that the court erred in awarding two
criminal history points each to his 2011 Virginia conviction
consisting of four counts of prostitution and his 2013 North
Carolina conviction for assault because these convictions were
on appeal. The Government has conceded the error and joins
Spain in requesting that we vacate Spain’s sentence. With
respect to Spain’s North Carolina conviction, the district court
should have awarded that conviction only one criminal history
point because it was on appeal. See United States v. Martin,
378 F.3d 353, 355-60 (4th Cir. 2004). The Virginia conviction,
however, was not on appeal. Spain appealed the 2011 Virginia
conviction and the presentence report makes clear that he
pleaded guilty to one of the four prostitution charges while on
appeal in the state circuit court. However, as the Government
points out, the district court awarded two criminal history
points each for (1) the 2011 conviction for four counts of
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prostitution as well as (2) the 2011 Virginia conviction for one
of those counts that resulted from Spain’s appeal to the state
circuit court. As these are not separate convictions, the
district court double-counted them in calculating Spain’s
criminal history.
We are unable to determine on the record that this error
was harmless. * Cf. United States v. Savillon-Matute, 636 F.3d
119, 123 (4th Cir. 2011) (to determine that incorrect Guidelines
calculation was harmless, appellate court must determine that
district court would have reached the same result if Guidelines
had been properly calculated and sentence would have been
reasonable). Accordingly, we affirm Spain’s convictions, but
vacate the sentence and remand for proceedings consistent with
this opinion. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid in the decisional
process.
AFFIRMED IN PART;
VACATED IN PART AND REMANDED
*We express no opinion on the substantive reasonableness of
the sentence that the district court imposed.
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