United States v. Shawn Aluiso ( 2018 )

Case: 17-30645 Document: 00514513689 Page: 1 Date Filed: 06/14/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-30645 June 14, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SHAWN ALUISO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:16-CR-246-1
Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
J.H., the 16-year old girlfriend of Shawn Aluiso’s cousin, Quince, was
driven by Aluiso and Jacob Cuellar from Houston to a hotel in Shreveport for
the purpose of engaging in prostitution, finding customers through ads Quince
placed on the website backpage.com. Aluiso pleaded guilty to illegal
transportation for prostitution and aiding and abetting and was sentenced to
100 months of imprisonment. On appeal, Aluiso contends that his sentence
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 17-30645
erroneously included guidelines enhancements for unduly influencing a minor
to engage in a prohibited sex act and for using an interactive computer service
to induce, entice, coerce, or facilitate the travel of a minor to engage in
prohibited sexual conduct. He also avers that he should not have received
three criminal history points for his prior Texas aggravated assault conviction.
Finding no merit to these arguments, we affirm.
A defendant receives a two-level enhancement if “a participant [in the
sex offense] otherwise unduly influenced a minor to engage in prohibited
sexual conduct.” U.S.S.G. § 2G1.3(b)(2)(B). Aluiso argues that it was Quince
alone who convinced J.H. to engage in prostitution. This argument fails for
two reasons. First, there is sufficient evidence of Aluiso’s own complicity in
unduly influencing J.H.: he helped transport J.H. to Shreveport; he, Quince,
and Cuellar forbade J.H. from leaving the Shreveport hotel; he, Quince, and
Cuellar threatened J.H. not to talk to police; and J.H. expressed fear of
repercussions from Aluiso’s and Quince’s families. Cf. United States v.
Anderson, 560 F.3d 275, 283 (5th Cir. 2009). Second, even if Quince alone
unduly influenced J.H., § 2G1.3(b)(2)(B) applies based on the conduct of any
offense participant. To that end, Aluiso does not allege that Quince’s conduct
was outside the scope of or not in furtherance of their joint criminal
undertaking or that it was not reasonably foreseeable in connection with the
offense. See U.S.S.G. § 1B1.3(a)(1)(B). On these facts, there was no error in
applying the undue-influence enhancement to Aluiso. See United States v.
Fernandez, 770 F.3d 340, 342, 344 (5th Cir. 2014).
A defendant also garners a two-level enhancement if a sex 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
the minor[.]” § 2G1.3(b)(3)(B). Aluiso contends that he had no knowledge that
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No. 17-30645
Quince or anyone else was posting backpage.com ads for J.H. He thus concedes
that the offense involved the prohibited use of an interactive computer service.
As above, Aluiso does not dispute that Quince’s use of backpage.com was
within the scope of and in furtherance of their joint criminal undertaking. See
§ 1B1.3(a)(1)(B)(i)-(ii). And given indications that Aluiso and Quince had long
used backpage.com to prostitute women, it is plausible to find that Aluiso could
reasonably foresee that Quince would do so here. See § 1B1.3(a)(1)(B)(iii);
United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010). Accordingly, the
district court did not err in applying the § 2G1.3(b)(3)(B) enhancement. See
Fernandez, 770 F.3d at 344-45.
Finally, a defendant receives three criminal history points for “each prior
sentence of imprisonment exceeding one year and one month.” U.S.S.G.
§ 4A1.1(a). Upon his conviction for aggravated assault, Aluiso received a
deferred probation sentence of seven years, which was revoked—resulting in
execution of the sentence—after his commission of the instant offense but
before his federal sentencing. “A sentence imposed after the defendant’s
commencement of the instant offense, but prior to sentencing on the instant
offense, is a prior sentence[.]” U.S.S.G. § 4A1.2, comment. (n.1). Accordingly,
there was no error in calculating Aluiso’s criminal history score. See
Fernandez, 770 F.3d at 344-45. We do not take up Aluiso’s wholly conclusory
and unsupported assertion that the district court erred by “double dipping” in
determining his criminal history score. See United States v. Charles, 469 F.3d
402, 408 (5th Cir. 2006).
AFFIRMED.
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