United States v. Terroderick Watts ( 2020 )

Case: 18-10959 Document: 00515638338 Page: 1 Date Filed: 11/13/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 13, 2020
No. 18-10959
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Terroderick Watts, also known as Silk,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CR-264-3
Before Dennis, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Terroderick Watts pleaded guilty under 18 U.S.C. § 371 to conspiring
to use a facility of interstate commerce in aid of a racketeering enterprise in
violation of 18 U.S.C. § 1952(a)(2) (“Count One”) and conspiring to commit
sex trafficking in violation of 18 U.S.C. § 1594(c), as defined in 18 U.S.C.
§ 1591(a)(l) and (a)(2) (“Count Two”). He was sentenced to two
*
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opinion should not be published and is not precedent except under the limited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. 18-10959
consecutive 60-month prison terms and three years of supervised release. On
appeal, Watts raises four issues challenging his conviction and sentence. We
AFFIRM, but order that the judgment be modified to reflect conviction
under § 1952(a)(3) rather than § 1952(a)(2). See United States v. Castro-
Trevino, 464 F.3d 536, 543 (5th Cir. 2006).
I.
First, Watts argues on two grounds that the district court erred in
accepting his guilty plea to Count One because there was an insufficient
factual basis for the conviction. Because Watts raises these arguments for the
first time on appeal, we review the judgment for plain error. See Castro-
Trevino, 464 F.3d at5 41. To prevail, Watts must show an error that is clear
or obvious that affected his substantial rights. Id. To establish that his
substantial rights were affected, he “must show a reasonable probability that,
but for the error, he would not have entered the plea.” Id. (internal quotation
marks and citation omitted). Even if the required showing is made, this court
will not correct the error unless it “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (internal quotation marks and
citation omitted). On plain error review, courts assessing the sufficiency of
the factual basis “may look beyond those facts admitted by the defendant
during the plea colloquy and scan the entire record for facts supporting his
conviction.” United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010).
A.
Count One charged Watts with conspiracy to violate 18 U.S.C.
§ 1952(a)(2). Conviction under this statute requires, as is pertinent to this
case, 1) the use of a facility in interstate commerce, 2) with intent to commit
a crime of violence, 3) to further unlawful activity. The government’s charge
identified a cellphone as the facility of interstate commerce and sex
trafficking under § 1591(a) as the violent crime intended to be committed, the
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unlawful activity to be furthered, or both. Watts argues that the conduct
satisfying the crime of violence requirement must be distinct from the
conduct satisfying the unlawful activity requirement.
A review of the record reveals no other distinct conduct which could
satisfy the crime of violence requirement, and the Government does not
argue that any such conduct exists. However, it argues that Watts cannot
show that the district court plainly erred in finding that the same conduct
could fulfill both requirements because the issue is subject to reasonable
dispute. We agree. A showing of reasonable dispute is insufficient to
establish clear or obvious error. See United States v. Alvarado-Casas, 715 F.3d
945, 952 (5th Cir. 2013) (“[I]f the district court’s factual basis finding is
subject to reasonable dispute, . . . a district court’s error in accepting the
guilty plea is not plain.” (internal quotation marks and citation omitted)).
Watts has identified no controlling circuit law requiring different, distinct
conduct to satisfy the crime of violence and unlawful activity components.
The Government likewise identifies no Fifth Circuit precedent, but points to
the Fourth Circuit’s holding in United States v. Lee, 726 F.2d 128, 131-32 (4th
Cir. 1984), which indicates that the same conduct may satisfy both elements.
As such, the district court’s finding that the factual basis for Watts’ plea to
Charge One was adequate on this issue is subject to reasonable dispute, and
Watts cannot show that the district court plainly erred. See United States v.
Miller, 665 F.3d 114, 136 (5th Cir. 2011) (“Because our law is unsettled, and
the law of our sister circuits is not uniformly in the defendant’s favor, plain
error is not demonstrated.”).
B.
Watts next argues that, even if the same conduct can satisfy both the
crime of violence and unlawful activity requirements, § 1591(a) sex
trafficking does not qualify as a crime of violence under 18 U.S.C. § 16.
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For purposes of § 1952(a)(2) offenses, the term “crime of violence”
is defined in § 16, which includes an elements clause, § 16(a), and a residual
clause, § 16(b). See United States v. Gonzalez-Longoria, 831 F.3d 670, 676 n.6
(5th Cir. 2016) (en banc), abrogated on other grounds by Sessions v. Dimaya, 138
S. Ct. 1204, 1214-16 (2018). In Dimaya, the United States Supreme Court
found the § 16(b) residual clause to be unconstitutionally vague. 138 S. Ct.
at 1214-16. As such, to qualify as a crime of violence under § 1952(a)(2),
Watts’ crime would need to satisfy the elements clause of § 16(a), which
requires that the offense have “as an element the use, attempted use, or
threatened use of physical force against the person or property of another.”
However, the Government argues that even if this court were to find that
Watts’ § 1591(a) offense is not a crime of violence and that the district court
thus plainly erred, Watts cannot show that it affected his substantial rights.
We agree.
The Government argues that even if Watts’ § 1591(a) offense is not a
crime of violence, there was an adequate factual basis to support a conviction
for conspiracy to violate 18 U.S.C. § 1952(a)(3), which it maintains is a lesser
included offense of 18 U.S.C. § 1952(a)(2), the crime to which Watts
pleaded.1 Section 1952(a)(3) contains no crime of violence requirement,
demanding in pertinent part only the use of a facility in interstate commerce
with intent to “promote, manage, establish, carry on, or facilitate the
promotion, management, establishment or carrying on of any unlawful
activity.” See § 1952. If convicted for conspiracy to violate § 1952(a)(3),
Watts would have faced the same statutory and guidelines penalty range as
1
A defendant may properly be found guilty of a lesser included offense, even if that
lesser offense is not specifically alleged in the charging document. See Castro-Trevino, 464
F.3d at 542-44; see also Fed. R. Crim. P. 31(c)(1) (providing that “[a] defendant may be
found guilty of . . . an offense necessarily included in the offense charged”).
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he did for his conviction for conspiracy to violate § 1952(a)(2). See 18 U.S.C.
§ 371; U.S.S.G. § 2E1.2. This court has held that a defendant’s substantial
rights are not adversely affected where the record shows guilt of a lesser-
included offense and the defendant faces the same statutory and guidelines
range. See Castro-Trevino, 464 F.3d at 544-47. Here, the facts stipulated to
by Watts support a conviction for conspiracy to violate § 1952(a)(3). As such,
if § 1952(a)(3) is indeed a lesser included offense to § 1952(a)(2), Watts
cannot show that this potential Dimaya error affected his substantial rights.
This court has not yet addressed whether § 1952(a)(3) is a lesser
included offense of § 1952(a)(2). However, in Lee the Fourth Circuit noted
the overlap between § 1952(a)(2) and (a)(3), stating that “it is impossible to
conceive of any crime of violence capable of furthering an unlawful activity
that was not also conduct that ‘carries on’ the unlawful activity.” 726 F.2d
at 132. We agree that § 1952(a)(3) logically must be a lesser included offense
of § 1952(a)(2). As such, we hold that even if the district court erred in
finding that Watts’ sex trafficking offense could satisfy § 1952(a)(2)’s crime
of violence requirement, Watts cannot show that this potential error affected
his substantial rights. We thus order that the judgment be modified to reflect
conviction for the lesser included offence of § 1952(a)(3). See Castro-Trevino,
464 F.3d at 543.
II.
Next, Watts argues that if the crime of violence and unlawful activity
requirements in § 1952(a)(2) need not be distinct, and that sex trafficking
qualifies as a crime of violence under § 16(a), then his conspiracy convictions
in Counts One and Two are multiplicitous and his two 60-month consecutive
sentences punish him twice for the same offense. By pleading guilty and
failing to challenge the charges as multiplicitous in the district court, Watts
waived the right to challenge his convictions on appeal. See United States v.
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Njoku, 737 F.3d 55, 67 (5th Cir. 2013). Nonetheless, he may challenge the
multiplicity of his consecutive sentences, as distinguished from his
convictions, for the first time on appeal. Id. Plain error review applies when
a defendant forfeits a claim of error by failing to raise it in the district court.
United States v. Wikkerink, 841 F.3d 327, 331 (5th Cir. 2016). Conversely,
when a claim of error is intentionally relinquished, it is waived and, therefore,
unreviewable on appeal. United States v. Arviso-Mata, 442 F.3d 382, 384 (5th
Cir. 2006).
The Government argues that Watts intentionally relinquished the
argument that his consecutive sentences on Counts One and Two punish him
for a single offense by agreeing in the factual resume for his guilty plea that
he faced a maximum potential 5 year sentence on both counts, for a total of a
potential 10-year prison term. We agree.
While claims of multiplicity stem from the Double Jeopardy Clause’s
proscription against multiple sentences for the same offense, United States v.
Vasquez, 899 F.3d 363, 381 (5th Cir. 2018), cert. denied, 139 S. Ct. 1543 (2019),
a criminal defendant’s rights afforded by the Double Jeopardy Clause may be
waived. United States v. Mezzanatto, 513 U.S. 196, 201 (1995) (citing Ricketts
v. Adamson, 483 U.S. 1, 10 (1987)). Although this court has not yet held
clearly that Watts’ agreement to the sentencing provisions in his factual
resume qualify as waiver of this issue on appeal, at least one other circuit has
found this sufficient to find waiver in a case involving a plea agreement. See
United States v. Mortimer, 52 F.3d 429, 435 (2d Cir. 1995) (holding that
defendant waived double jeopardy challenge by signing plea agreement to
enter plea to two felonies and to receive consecutive sentences); accord
Dermota v. United States, 895 F.2d 1324, 1325 (11th Cir. 1990). Additionally,
in an analogous case, this court held, inter alia, that a defendant convicted of
drug possession waived his rights under 21 U.S.C. § 851, which requires the
Government to give notice of its intent to rely on a prior conviction to seek a
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sentencing enhancement, by agreeing to a sentencing range that included an
enhancement and by accepting a plea agreement to avoid the risk of another
charge. United States v. Dodson, 288 F.3d 153, 162 (5th Cir. 2002).
Here, the record demonstrates that Watts pleaded guilty to Counts
One and Two in order to avoid the potential of harsher penalties, and that the
charges to which Watts ultimately pleaded were structured so as to reduce
Watts’ sentencing exposure from a range of ten years to life to a range of zero
to ten years. Watts’ agreement with the factual resume demonstrates his
understanding that by pleading to both counts, both of which had a statutory
maximum of five years, he agreed that the court could impose consecutive
sentences on those counts. By doing so, Watts received the significant
benefit of reducing his sentencing exposure from ten years to life to a
maximum of ten years. On these facts, we find that Watts affirmatively
waived any argument against receiving consecutive sentences on Counts One
and Two.
III.
Third, Watts argues that the facts in the charging document and
factual resume do not support the statements and calculations contained in
his PSR. Improperly calculating the applicable guidelines range constitutes
procedural error, though this court will not vacate any sentence on that
ground if the improper guidelines calculation did not affect the selection of
the imposed sentence. United States v. Richardson, 676 F.3d 491, 511 (5th Cir.
2012) (quoting Williams v. United States, 503 U.S. 193, 203 (1992). Because
Watts did not raise these assertions in the district court, plain error review
applies. Cf. Wikkerink, 841 F.3d at 331.
A.
Watts indicates that the PSR incorrectly states that he pleaded guilty
under 18 U.S.C. § 371 to both § 1591(a) and (b)(2), whereas his factual
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resume does not reflect a plea to § 1591(b)(2). Watts asserts that neither the
factual resume nor the charging document state that he trafficked victims
under the age of 14 in violation of § 1591(b)(2). We find that even if the PSR’s
reference to § 1591(b)(2) represents plain error, Watts cannot show that it
affected his substantial rights. Cf. Wikkerink, 841 F.3d at 336-38.
The PSR makes the challenged statement regarding § 1591(b)(2) in
calculating Watts’ base offense level. The sentencing guideline for
conspiracy, U.S.S.G. § 2X1.1, directs that the proper base offense level for
conspiracy is derived from the level applicable to the substantive offense the
defendant conspired to commit. U.S.S.G. § 2X1.1(a) (2016). Thus, Watts’
base offense level was properly calculated under U.S.S.G. § 2G1.3, the
guidelines governing coercive sex trafficking of minors. Section 2G1.3
applies to all § 1591 offenses involving minors of all ages. See § 2G1.3 cmt.
(2016).
As to the particular paragraph of § 2G1.3(a) that Watts’ PSR applied,
the district court did not assess the higher base offense level at § 2G1.3(a)(2)
which is applicable to convictions under § 1591(b)(2); rather, it assessed the
lowest base offense level at § 2G1.3(a)(4), which is applicable to § 1591
offenses that do not fall under any of the enumerated provisions. See
§ 2G1.3(a)(2), (4). Accordingly, even if the PSR’s reference to § 1591(b)(2)
was plain error, Watts has not shown that this error resulted in a higher or
incorrect guidelines range or otherwise affected the outcome of his
proceedings. Cf. Wikkerink, 841 F.3d at 337.
B.
Watts also argues that the PSR incorrectly applied three guidelines
enhancements when calculating the applicable guidelines range. First, he
argues that the PSR incorrectly applied the two-level enhancement of
§ 2G1.3(b)(2)(B) based on a finding that a conspirator “unduly influenced a
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minor to engage in prohibited sexual conduct,” when there was nothing
about the age of the victims in his factual resume or the charging document.
Second, Watts argues that the PSR incorrectly applied the two-level
enhancement of § 2G1.3(b)(3)(B) based on a finding that his offense involved
the use of a computer, when nothing in the amended superseding information
states that he used a computer to post advertisements in committing the sex
trafficking offense. Third, he argues that there was inadequate support for
the five-point enhancement of U.S.S.G. § 4B1.5(b)(1) (2016) because his
amended superseding information mentioned only one victim, and
§ 4B1.5(b)(1) applies only when a defendant has engaged in a pattern of
activity involving prohibited sexual conduct.
The district court has wide discretion to determine what evidence to
consider at sentencing. United States v. Andaverde-Tinoco, 741 F.3d 509, 525
(5th Cir. 2013). It may rely on information contained in the PSR if it has “an
adequate evidentiary basis with sufficient indicia of reliability.” United States
v. Fuentes, 775 F.3d 213, 220 (5th Cir. 2014) (internal quotation marks and
citation omitted). To successfully challenge the facts contained in the PSR,
the defendant must present competent evidence demonstrating that the
information is “materially untrue, inaccurate or unreliable.” United States v.
Koss, 812 F.3d 460, 469 (5th Cir. 2016) (internal quotation marks and citation
omitted).
At sentencing, Watts disputed, and had successfully amended, certain
of the PSR’s findings. However, unchallenged PSR findings state that three
female minors2 were recovered from a hotel room rented by Watts, one of
2
On appeal Watts argues that the PSR’s references to minor victims 2 and 3 are in
error as the charging document to which he pleaded referenced only minor victim 1.
However, he did not object to the inclusion of all three victims in the PSR and here provides
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whom was under 13 years old, that Watts rented hotels rooms during the
conspiracy knowing that they would be used for commercial sex acts
performed by the three victims, that Watts was 27 years old at the time, that
advertisements for commercial sex acts were posted online via a computer or
analogous device during the conspiracy, and that Watts, by renting the hotel
rooms, engaged “in a pattern of activity that involved the prohibited sexual
conduct” of the victims “on multiple occasions.”
In light of these uncontested facts, the district court did not plainly err
in applying any of the three challenged sentence enhancements. First, there
is a rebuttable presumption that a minor victim was unduly influenced for
purposes of the § 2G1.3(b)(2)(B) enhancement if a participant is at least 10
years older than the minor. See § 2G1.3 cmt. n.3(B). Watts does not
challenge the fact that, at the time of the offense, he was 27 and one of the
minor victims was 13.
Next, even if Watts did not use a computer to post advertisements for
sex services himself, § 2G1.3(b)(3)(B) permits an enhancement “[i]f the
offense involved the use of a computer or an interactive computer service.”
The commentary to the Guidelines defines “offense” to mean “the offense
of conviction and all relevant conduct under [U.S.S.G.] § 1B1.3.” U.S.S.G.
§ 1B1.1 cmt. n.1(I). Where there is “jointly undertaken criminal activity,”
relevant conduct includes the acts and omissions of others if they were
“within the scope of the jointly undertaken criminal activity,” “in
furtherance of that criminal activity,” “reasonably foreseeable in connection
with that criminal activity” and, as relevant here, if they “occurred during
the commission of the offense.” U.S.S.G. § 1B1.3(a)(1)(B) (2016). The PSR
no evidence to rebut the evidence in the PSR regarding victims 2 and 3, which is well
supported by the record.
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shows that advertisements were placed as part of the sex trafficking
conspiracy. Watts does not argue that his conspirators did not place the
advertisements or that placement of the advertisements did not qualify as
relevant conduct. Thus, he has not shown clear or obvious error in the
district court’s assessment of this sentencing enhancement.
Finally, § 1591 offenses are covered sex crimes for purposes of the
pattern-of-activity enhancement. U.S.S.G § 4B1.5 cmt. n.2(A)(iv). The
record shows Watts’ involvement in the sex trafficking activity on multiple
occasions by, inter alia, renting hotel rooms that he knew would be used by
three minors; thus, the district court did not plainly err in assessing the
§ 4B1.5(b)(1) enhancement.
C.
Additionally, Watts argues that the district court should have grouped
Counts One and Two for the purposes of sentencing. In fact, the district
court did group the counts. Watts similarly argues that the district court
erred in determining his criminal history category by failing to treat his two
prior robbery offenses as a single sentence as there was no intervening arrest
between the offenses and the sentences were imposed on the same day. See
U.S.S.G. § 4A1.2(a)(2) (2016). However, the record shows that the PSR
does treat these two offenses as a single sentence.3 As such, Watts can show
no plain error in the court’s purported failure to group Counts One and Two
3
The confusion here may be due to the application of U.S.S.G. § 4A1.1(e), which
instructs courts to add one point to the criminal history score “for each prior sentence
resulting from a conviction of a crime of violence that did not receive any points under
[§ 4A1.1](a), (b), or (c) . . . because such sentence was treated as a single sentence.” Watts
received a total of four criminal history points for these two offenses; three for the
combined sentence under § 4A1.1(a), and one for the second robbery offense under
§ 4A1.1(e). Watts does not argue that the second robbery offense does not qualify as a
crime of violence under § 4A1.1(e).
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nor in its purported failure to treat his two prior robbery offenses as a single
sentence.
IV.
Finally, Watts argues that his judgment conflicts with the district
court’s oral pronouncement of his sentence because the judgment includes
two special conditions of supervised release 4 that were not pronounced at
sentencing. This court has held that any unpronounced special conditions
must be stricken from the written judgment on remand to the sentencing
court. United States v. Rivas-Estrada, 906 F.3d 346, 348 (5th Cir. 2018).
However, in United States v. Diggles, we held that a district court’s oral
adoption of the PSR which included the contested special conditions satisfied
its pronouncement obligations, particularly as the defendant had advance
notice of the conditions. 957 F.3d 551, 560-61 (5th Cir. 2020) (en banc)
(“Oral in-court adoption of a written list of proposed conditions provides the
necessary notice.”). Here, prior to sentencing, the court provided Watts and
his counsel with a document titled “Order Setting Additional Terms of
Supervised Release” that disclosed the two challenged special conditions.
Watts concedes that he and his counsel reviewed and signed the document.
At sentencing, the district court confirmed that counsel reviewed with Watts
the special conditions included in the judgment, and Watts did not object to
the special conditions. As such, Watts was not “blindsided” when the
challenged conditions appeared in his judgment. Diggles, 957 F.3d at 559.
Accordingly, the district court did not plainly err5 by including the two
4
These conditions prohibit Watts from possessing pornographic matter and from
contacting the victims of his crimes.
5
Watts argues that he had no opportunity to object to the special conditions at
sentencing, and as such the standard of review is properly abuse of discretion. Diggles, 957
F.3d at 559. But the “opportunity [to object] exists when the court notifies the defendant
at sentencing that conditions are being imposed.” Id. at 560. Diggles held that this notice
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challenged conditions in the written judgment, even though the conditions
were not pronounced word-for-word during the sentencing hearing. See id.
at 562 (rejecting requirement for a “word-for word recitation of each
condition”).
V.
For the foregoing reasons, Watts’ conviction and sentence are
AFFIRMED.
was given by the court “telling [the defendants] that it was adopting the PSR’s proposed
conditions” which it confirmed that the defendants had reviewed. Id. Similarly, this notice
was given to Watts when the court confirmed that he had had the opportunity to review the
special conditions in the “Order Setting Additional Terms of Supervised Release” and
ordered that those conditions be imposed. As such, Watts did have an opportunity to object
and the proper standard of review is for plain error.
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