United States v. Lee ( 2022 )

Case: 20-20629 Document: 00516186225 Page: 1 Date Filed: 01/31/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 31, 2022
No. 20-20629 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Romello Dequaes Lee,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-99-1
Before King, Graves, and Ho, Circuit Judges.
Per Curiam:*
Following a jury trial, Romello Dequaes Lee was convicted of sex
trafficking of a minor victim (MV1) and of sex trafficking of a minor victim
(MV2) by force. He was sentenced below the guidelines imprisonment range
of life to concurrent 480-month prison terms and within the guidelines
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-20629
supervised-release range to concurrent lifetime terms of supervised release.
Lee timely appealed.
Sufficiency of the evidence
Lee challenges the sufficiency of the evidence to support his
conviction for sex trafficking MV1. As relevant here, a child sex-trafficking
offense involves a victim who “has not attained the age of 18 years and will
be caused to engage in a commercial sex act” in or affecting interstate
commerce. 18 U.S.C. § 1591(a). One way of committing the offense is to
knowingly recruit, entice, harbor, transport, provide, obtain, advertise,
maintain, patronize, or solicit the minor victim. § 1591(a)(1). Another way
is to knowingly benefit, either financially or by receiving anything of value,
from participating in a venture that has engaged in one of the acts described
in § 1591(a)(1). § 1591(a)(2). The strictest mens rea element of § 1591(a)
requires either knowledge or reckless disregard of the minor’s age. § 1591(a);
see United States v. Sims, 11 F.4th 315, 321 (5th Cir. 2021). Where the offense
is committed under § 1591(a)(1) by advertising, though, the mens rea element
can be satisfied only by a showing of actual knowledge. § 1591(a).
Contrary to Lee’s assertion here, trial testimony from MV1 was not
necessary to convict him. The Government may prove its case through direct
or circumstantial evidence, and the jury may choose among reasonable
constructions of the evidence. United States v. Mitchell, 484 F.3d 762, 768
(5th Cir. 2007). There is no dispute that MV1 was under the age of 18 at all
relevant times. We have carefully reviewed all the evidence adduced at trial.
Viewing that evidence in the light most favorable to the Government, a
rational juror could have found beyond a reasonable doubt that Lee had actual
knowledge that MV1 was not yet 18 years old, that he had, at a minimum,
knowingly transported and advertised MV1 for the purpose of engaging in
commercial sex acts, and that he had knowingly benefitted financially from
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MV1’s acts of prostitution. See § 1591(a)(1), (a)(2), (b)(2); United States
v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc).
Opinion testimony
Evidence of text messages sent between Lee and MV1 was introduced,
and the Government elicited testimony from Danielle LaFosse, the lead
investigator in this case, who was not called as an expert, that some of those
text messages were discussing commercial sex acts. Lee contends that
LaFosse was improperly allowed to present both fact and expert testimony
about the subject of those text messages. As this issue was not raised in the
district court, we review it only for plain error. See United States v. Akins, 746
F.3d 590, 597 (5th Cir. 2014). To establish plain error, a defendant must
show a forfeited error that is clear or obvious and affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a
showing, this court has the discretion to correct the error only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
id.Lee points to several specific instances where, he contends, LaFosse
improperly opined that certain text messages were discussing commercial sex
acts. Our review of the record indicates that in all but one of those instances,
LaFosse was asked to explain the meaning of the message based on, inter alia,
her involvement in this case. Thus, the majority of the challenged testimony
was admissible lay testimony under Federal Rule of Evidence 701. See Fed.
R. Evid. 602, 701; United States v. El-Mezain, 664 F.3d 467, 514 (5th Cir.
2011); United States v. Miranda, 248 F.3d 434, 441 (5th Cir. 2001).
With respect to the one instance where the question was not
specifically phrased in terms of LaFosse’s involvement in this case, it is not
clear or obvious that her testimony impermissibly crossed the line into expert
testimony. Regardless, there is no reversible plain error because, in light of
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the ample other evidence against him, Lee cannot “show a reasonable
probability that his trial would have come out differently” absent the
challenged testimony from LaFosse. United States v. Sosa, 897 F.3d 615, 620
(5th Cir. 2018) (internal quotation marks and citation omitted).
Procedural reasonableness of Lee’s sentence
Lee argues that the district court procedurally erred at sentencing
because it did not address each of the separate arguments he raised in
mitigation of his sentence. It was not required to do so. See United States
v. Becerril-Pena, 714 F.3d 347, 351-52 (5th Cir. 2013).
A district court is required to explain its choice of sentence “to allow
for meaningful appellate review and to promote the perception of fair
sentencing.” United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th
Cir. 2009). Sentences within the guidelines range require little explanation.
Id. at 362. Here, Lee’s 480-month prison term was below the guidelines
range, and his lifetime term of supervised release was within the guidelines
range. He argues that the district court failed to adequately explain its
decision to impose each of those terms and its decision to impose lifetime
restrictions on his access to computers, the internet, or minor children. Lee
did not raise these procedural arguments in the district court, and plain-error
review applies. See id. at 361-62.
In order to establish that his substantial rights were violated for
purposes of plain-error review, Lee must show a reasonable probability that,
but for the district court’s alleged procedural error, he would have received
a lesser sentence. See Mondragon-Santiago, 564 F.3d at 364-65. Lee does not
assert, and the record does not indicate, a reasonable probability that a more
detailed explanation would have changed his sentence. He has therefore
failed to meet his burden under plain-error review. See id.4
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Substantive reasonableness of Lee’s sentence
As he did in the district court, Lee argues that his 480-month prison
sentence is substantively unreasonable. We review the substantive
reasonableness of his sentence under an abuse-of-discretion standard. Gall
v. United States, 552 U.S. 38, 51 (2007). Lee’s below-guidelines prison term
is presumptively reasonable, and our careful review of the record and Lee’s
arguments leads us to conclude that Lee has not made the showing required
to rebut that presumption. See United States v. Simpson, 796 F.3d 548, 557
(5th Cir. 2015).
For the first time in this court, Lee argues that the supervised-release
conditions restricting his access to computers, the internet, and children,
which were announced at sentencing, are substantively unreasonable. Our
review is for plain error. United States v. Diggles, 957 F.3d 551, 560 (5th Cir.)
(en banc), cert. denied, 141 S. Ct. 825 (2020).
With respect to the restrictions on Lee’s access to children, Lee
asserts that they are unwarranted by the facts of the case and that he had no
prior history of directly abusing children. We easily conclude that these
particular restrictions are reasonably related to the nature and characteristics
of Lee’s offenses and to the need to protect the public from further crimes by
Lee. See 18 U.S.C. § 3583(d)(1); 18 U.S.C. § 3553(a)(1) and (a)(2)(C);
United States v. Duke, 788 F.3d 392, 398 (5th Cir. 2015). Further, the
restrictions allow Lee contact with children if he has prior written approval
from his probation officer. Given the nature of this offense, the conditioned
restrictions on Lee’s access to children is not a “greater deprivation of liberty
than is reasonably necessary” to achieve the purposes set forth at § 3553(a).
§ 3583(d)(2); see Miller, 665 F.3d at 133-34.
Lee argues that the restrictions on his access to computers and the
internet run afoul of our precedent. While we have found an absolute lifetime
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ban on computer and internet access to be a greater deprivation of liberty than
is reasonable, see Duke, 788 F.3d at 399-403, we have previously approved
restrictions that were, like Lee’s, conditioned on approval by the court or by
a probation officer. See United States v. Ellis, 720 F.3d 220, 224-25 (5th Cir.
2013); United States v. Miller, 665 F.3d 114, 127 (5th Cir. 2011). The
computer and internet restrictions imposed here do not purport to require
Lee to receive a separate prior approval every time he needs to use a
computer or access the internet, and the district court did not plainly err in
imposing them. See Puckett, 556 U.S. at 135; United States v. Sealed Juv., 781
F.3d 747, 756 (5th Cir. 2015).
AFFIRMED.
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