United States v. Bok Young ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2357
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
B OK Y OUNG,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 05 CR 50-3—Rudy Lozano, Judge.
A RGUED F EBRUARY 27, 2009—D ECIDED D ECEMBER 23, 2009
Before M ANION, R OVNER, and T INDER, Circuit Judges.
R OVNER, Circuit Judge. Bok Young helped to run a
day spa in Highland, Indiana, at which she and other
workers provided sexual massages to spa customers.
She was arrested when the spa was raided by local and
federal agents. Young eventually pleaded guilty to con-
spiring to use the facilities of interstate commerce to
facilitate prostitution, see 18 U.S.C. §§ 371 and 1952(a)(3),
and the district court ordered her to serve a prison term
2 No. 08-2357
of eighteen months, the minimum term called for by the
Sentencing Guidelines. Young appeals, contending that
the district court made two errors in calculating her
Guidelines range: characterizing Young’s role in the
offense as that of a manager or supervisor, see U.S.S.G.
§ 3B1.1(b) and (c), and treating Young’s co-workers as
victims whom she had enticed to engage in prohibited
sexual conduct, see U.S.S.G. § 2G1.1(d). Young also
argues that the court failed to give meaningful attention
to the mitigating factors she cited as a basis for a lower
sentence, and that the sentence imposed by the court
is unreasonable. We affirm.
I.
The Barley Spa in Highland, Indiana was one of four
day spas in Highland and Dyer, Indiana that came
under investigation in the autumn of 2005 by the police
departments of those two towns along with the
U.S. Internal Revenue Service, the Federal Bureau of In-
vestigation, and Immigration and Customs Enforcement.
Sun Cha Thompson owned three of the four spas, in-
cluding the Barley Spa. On February 22, 2006, agents
executed search warrants at all four spas. Present at the
Barley Spa when agents searched it were Young and
two other employees: Pok Sun Palmer, who cleaned the
spa and cooked meals for its customers, and Soon Ja Kim,
who provided massages. Palmer and Kim had been
working at the spa for a matter of weeks. Young had been
working there for approximately six months.
The Barley Spa offered its customers standard
massages, but for customers willing to pay a bit more, its
No. 08-2357 3
masseuses were willing to provide masturbation. Young
would later state at her change-of-plea hearing that
customers were charged an entry fee of $50 for 30 minutes
or $70 for an hour of nonsexual massage. Customers
interested in a sexual massage typically paid an extra “tip”
of between $20 to $60; the amount of the tip, if any, was
up to the customer. The masseuses kept whatever tips
their clients paid them for their massages and were not
otherwise paid wages by the spa. The spa in turn made
its money from the fees that customers paid to enter
the spa. Young estimated that at least seventy-five
percent of the spa’s customers were interested in sexual
massages.
Thompson had hired Young in August of 2005 to
handle the spa’s day-to-day operations, including its
bookkeeping. Young was to pay Thompson $1,000 per
month out of the spa’s receipts; from the remainder, she
was to pay herself a salary of $3,000 per month (although
Young would later say that the proceeds were never
sufficient to pay herself that much). Following Young’s
engagement, the spa’s accountant wrote a memorandum
indicating that Young would be replacing Thompson as
the individual “run[ning] things” at the spa. R. 244 at 33.
Within a couple of months, Thompson was no longer
directly involved with the daily operation of the spa
and visited the premises no more than once a week.
Young collected the daily proceeds, paid the spa’s bills,
made sure that the ledger of the spa’s business was in
order for Thompson’s occasional review, took out adver-
tisements, paid the cook her daily wages, hired new
employees, bought groceries for the employees (who
4 No. 08-2357
lived at the spa), and kept Thompson apprised of any
personnel issues. Young looked into Palmer’s immigra-
tion status before hiring her as the spa’s cook and house-
keeper shortly before the raid, and when Palmer began
work, it was Young who showed her around the spa
and instructed her on her responsibilities. Like the spa’s
other employees (excepting Palmer), Young did
provide sexual massages to the spa’s clients. But Young
was the sole employee charged with managing the spa’s
day-to-day operations. There was also evidence that
when customers arrived, Young decided which of the
other masseuses would provide them with services.
Kim, a masseuse who was present at the time of the
raid, would later state that Young was “in control of
everything” at the spa. R. 244 at 72.
In view of Young’s responsibilities, the district court
found that she qualified as a manager or supervisor of the
criminal activity that took place at the spa, thus triggering
a two-level increase in her sentencing level pursuant to
section 3B1.1(c) of the Guidelines. The court noted, among
other factors, that Thompson’s degree of involvement
with the spa decreased after Young was hired, that Young
received a salary in contrast to the other women who
provided sexual massages and were compensated by the
“tips” they received for those services, that she wrote
checks on behalf of the spa (including her own pay-
check), and that Young described her own role as that of
manager in paperwork she completed for an advertise-
ment in a telephone directory and during an interview
that agents conducted in the immediate aftermath of the
raid on the spa. R. 293 at 12-18. The court added that even
No. 08-2357 5
if Young did not qualify as a manager or supervisor of the
other participants in the spa’s criminal activity, she did
“exercise[ ] management responsibility over the prop-
erty[,] assets[,] and activities of the criminal organization,”
which the Sentencing Commission’s advisory notes
recognize as a basis for a longer sentence. R. 293 at 18;
see § 3B1.1, comment. (n.2)
The court concluded that a second, “pseudo count”
enhancement was warranted based on Young’s role in
enticing the other women at the spa to engage in illegal
sexual conduct. See § 2G1.1(d). When a defendant has
been convicted of an offense involving the promotion
of commercial sex acts or other prohibited sexual
conduct and multiple victims, section 2G1.1(d) instructs
the court to calculate the defendant’s offense level as if
the defendant had been convicted of a separate count for
each victim. Because offenses of this nature are not
grouped together for sentencing purposes, see U.S.S.G.
§§ 2G1.1, comment. (n.5) & 3D1.2, additional counts of
conviction trigger an increase in the defendant’s
combined offense level, see U.S.S.G. § 3D1.4. There were
multiple masseuses who worked at the Barley Spa
during Young’s tenure, and because their sole source of
pay was the “tips” they received for sexual massages, the
court treated them as victims of the offense in the sense
that they were “enticed” into engaging in commercial sex
acts. Based on those victims, the court deemed Young to
have been convicted of one additional “pseudo” count,
which resulted in a two-level increase in her offense
level. R. 293 at 20-22.
6 No. 08-2357
Young’s adjusted offense level, together with her lack
of a prior criminal record, called for a sentence in
the range of 18 to 24 months. In a written sentencing
memorandum, Young’s counsel highlighted a variety of
mitigating factors and asked for a “minimal sentence.”
R. 221 at 6. At the final sentencing hearing, Young’s
counsel urged the court to impose a below-Guidelines
sentence of probation, noting that Thompson, the owner
of the spa, had received a term of twenty-seven months
and Thompson’s silent partner and investor had
received probation, that Young had been on work release,
which he characterized as “basically home arrest” for the
preceding two years, R. 293 at 31, and that Young
would not be aided by going to prison. R. 293 at 26-32. The
district court did not specifically address the various
mitigating factors that Young’s counsel had cited. How-
ever, the court did acknowledge its obligation to
consider the sentencing factors set forth in 18 U.S.C.
§ 3553(a) in addition to the Guidelines in deciding
“what a reasonable sentence would be.” R. 293 at 37.
The court then explained why it had concluded that a
sentence at the low end of the Guidelines range was
appropriate for Young:
[I]n this case I think, if anything, the [G]uidelines are
light, but I think they’re light, Ms. Young, in large
part because you’re given the benefit of the doubt
with regards to several portions of the [G]uidelines.
But when there was any question that I felt to be
close enough, I would give you the benefit of the
doubt. When there was a question regarding an en-
No. 08-2357 7
hancement, although in some cases I felt that it might
be justified, again, I gave you the benefit of the doubt.
When I first sat down to consider a sentence in this
case, I thought a sentence at 24 months would be a
reasonable sentence. In listening to your attorney,
I think that I should relook at that number. I have
looked at the probation officer’s recommendations
and the comments from the Government. I have
rethought that sentence, and then I looked at
the Guidelines again, and I have decided upon the
following sentence . . . .
R. 293 at 37. The court proceeded to sentence Young to
a term of eighteen months.
II.
A. Enhancement for Leadership Role in the Offense
For offenses involving multiple participants, section
3B1.1 of the Sentencing Guidelines provides for
aggravating-role enhancements based on the number of
participants involved in the criminal activity and the
defendant’s relative responsibility for committing the
offense. The guideline specifies (a) a four-level enhance-
ment for a defendant who qualifies as an “organizer or
leader” of criminal activity involving five or more partici-
pants or that was otherwise extensive, (b) a three-level
enhancement for a defendant who qualifies as a “supervi-
sor or manager” of criminal activity involving five or
more participants or that was otherwise extensive, and (c)
a two-level enhancement for a defendant who qualifies
8 No. 08-2357
as an organizer, leader, manager, or supervisor of
criminal activity involving fewer participants and that
was not otherwise extensive. The district court found
that Young constituted a supervisor or manager of the
criminal activity that transpired at the Barley Spa, but,
because it assumed that the crime involved less than
five participants and was not otherwise extensive, it
increased Young’s offense level by two rather than
three levels. The court’s finding that a defendant
qualified as a manager or supervisor of criminal activity
is a factual determination that we review for clear error.
E.g., United States v. Watts, 535 F.3d 650, 660 (7th Cir.),
cert. denied, 129 S. Ct. 475 (2008).
Young concedes that one can take “snippets” from the
record that support the district court’s finding but insists
that “the evidence, as a whole, does not establish a basis
for this enhancement[,] for the context does not demon-
strate exertion[ ] of control over others, as contemplated
by the [guideline].” Young Br. 19. She points out that in
order to qualify as a manager or supervisor, a defendant
must, at a minimum have “some real and direct influ-
ence” upon at least one other participant in the crime in
a way that furthers the criminal activity. See United States
v. Mankiewicz, 122 F.3d 399, 405 (7th Cir. 1997) (quoting
United States v. Mustread, 42 F.3d 1097, 1103 (7th Cir.
1994)). She emphasizes that this is not a case of “white
slavery” in which the spa’s workers were coerced into
providing sexual services to customers. Although Young
had administrative responsibilities that other workers
at the spa did not, she characterizes her role as that of a
bookkeeper who collected the spa’s proceeds and paid
No. 08-2357 9
its bills under the direction of the spa’s owner,
Thompson, and who had no meaningful influence over
the activities of any other employee. This was a small
operation in which each employee had her own duties,
Young argues, and her duties did not involve the
direction or control of the other workers.
Having reviewed the record, we are satisfied that the
evidence supports, although it may not compel, the
finding that Young was a manager or supervisor of the
spa’s criminal activity. One can readily infer from the
record that Young acted as the owner’s proxy in
overseeing the spa’s day-to-day affairs: she collected the
proceeds, paid the cook/housekeeper her daily wage, was
responsible for the ledger, and paid the bills. She
reported to Thompson when there were problems with
other employees, including, for example, an employee’s
failure to report for work (which resulted in Thompson
firing the absent worker). There was evidence that Young
hired employees, including Palmer, the cook/housekeeper.
There was also evidence (which although disputed, the
district court credited) that Young decided, upon the
arrival of a customer, which of her co-workers would
provide a massage to the customer. R. 244 at 17; R. 293
at 13. Young may not have controlled her co-workers in
the sense that she had the power to dictate their
actions, but such control is not the sine qua non of a
leadership role; one may still qualify as a manager or
supervisor if she orchestrates or coordinates the activities
of other participants in the crime. United States v. Martinez,
520 F.3d 749, 752 (7th Cir.), cert. denied, 129 S. Ct. 300 (2008);
see also United States v. Gonzalez-Mendoza, 584 F.3d 726, 728-
10 No. 08-2357
29 (7th Cir. 2009). The evidence that Young hired
workers, assigned them to customers, handled the spa’s
finances, and acted as the owner’s representative
supports the district court’s finding that she played a
more responsible role in the crime than did the other spa
employees. There was no clear error in the district
court’s determination that she qualified as a manager or
supervisor.
B. Pseudo-Count Enhancement for Commercial Sex Acts
Involving Multiple Victims
Young conspired to use the facilities of interstate com-
merce to facilitate prostitution. Her offense was thus one
involving commercial sex acts, i.e., those for which pay-
ment is rendered. See U.S.S.G. § 2G1.1, comment. (n.1), and
18 U.S.C. § 1591(e)(3). Where such an offense involves
more than one victim, section 2G1.1(d)(1) of the
Guidelines instructs the court to calculate the offense
level “as if the promoting of a commercial sex act . . . in
respect to each victim had been contained in a separate
count of conviction.” Pursuant to Application Note 5 of
the guideline, any person who is “transported,
persuaded, induced, enticed, or coerced to engage in . . . a
commercial sex act . . . is to be treated as a separate victim.”
Id., comment (n.5). The district court found that during
Young’s tenure at the spa, there were “at least four and
likely seven to eight” women other than Young who
provided sexual services to customers, R. 293 at 19, and
each of those women constituted a victim for purposes of
the Guideline, R. 293 at 19-20. The court also found that
No. 08-2357 11
Young, in her role as the spa’s manager, had effectively
“enticed” these women into performing commercial sex
acts by confining their income to the “tips” they received
for providing sexual massages. R. 293 at 21-22. The court
therefore calculated Young’s offense level as if she had
been convicted of one “pseudo count” of promoting a
commercial sex act in addition to the one actual count of
conviction. The fictitious second count resulted in a two-
level increase in Young’s offense level pursuant to
section 3D1.4. The district court’s findings that the spa’s
masseuses were victims and that Young was responsible
for enticing them into performing commercial sex acts
are factual in nature, and we review them for clear error.
See United States v. Julian, 427 F.3d 471, 488-89 (7th
Cir. 2005).
Young protests the enhancement, contending that in
the absence of evidence that she coerced the masseuses
into engaging in sexual activity or controlled their
method of payment, it was improper to increase her
offense level simply because the masseuses were given
a financial incentive to give sexual massages. Young
points out that Kim testified that she (Kim) kept not only
the tips they received for sexual massages, but also one-
half of the entrance fees charged to her customers. Conse-
quently, the tips for sexual gratification were not neces-
sarily the masseuses’ sole source of payment. Young
herself also testified that it was common for spas not to
pay masseuses a wage and instead compensate them
from the fees they collected from customers. She adds that
it was Thompson and not she who established the
manner and amount of payment for massages.
12 No. 08-2357
The district court did not clearly err in finding that
Young was responsible for enticing the spa’s masseuses
into performing sexual massages. That Young did not
coerce the masseuses is, as Young all but concedes, beside
the point, as the guideline expressly reaches those
who “entice” others into performing commercial sex acts
as well as those who persuade, induce or coerce others
into doing so. And the evidence supports the court’s
finding that the women were enticed to engage in
sexual massages. Even if the “tips” that the masseuses
kept were not the sole source of their compensation, they
nonetheless amounted to a substantial portion of that
compensation. And given that seventy-five percent or
more of the spa’s customers were seeking sexual gratifica-
tion, it is doubtful that a masseuse who refused to
provide that gratification would have lasted long at the
spa. This was enough to establish that the masseuses
were enticed into engaging in sexual activity for pay, and
thus to support the finding that the masseuses were
victims for purposes of the Guideline. Young’s role as a
manager or supervisor of the spa’s criminal activity in
turn supports the court’s finding that she was
responsible for the enticement. Granted, Young did not
set up the spa’s fee structure and method of com-
pensating the masseuses. But, as the individual who for
six months assigned masseuses to customers, collected
the spa’s proceeds, made sure that the spa’s business
was accurately documented in a ledger for Thompson,
and kept the spa running on a day-to-day basis, Young
played a significant role in perpetuating both the illicit
activity taking place at the spa and the means by which
No. 08-2357 13
the masseuses were compensated for that activity. The
district court could reasonably infer that Young herself
enticed the masseuses to engage in commercial sexual
activity.
C. Reasonableness of Young’s Sentence
In the wake of the Supreme Court’s watershed decision
in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738(2005), a district court has an obligation to impose a
sentence that is reasonable in light of the sentencing
criteria set forth in 18 U.S.C. § 3553(a). See United States v.
Dean, 414 F.3d 725, 730-31 (7th Cir. 2005); see also Gall v.
United States, 552 U.S. 38, 49-50, 128 S. Ct. 586, 596-97
(2007). Although it is no longer bound by the Sentencing
Guidelines, the court still must consult the Guidelines
in arriving at a reasonable sentence, see Kimbrough v.
United States, 552 U.S. 85, 108, 128 S. Ct. 558, 574 (2007)
(“district courts must treat the Guidelines as ‘the
starting point and the initial benchmark’ ”) (quoting Gall,
552 U.S. at 49, 128 S. Ct. at 596), and when the
court selects a sentence that falls within the properly-
calculated Guidelines range, we shall presume that sen-
tence is reasonable. United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005); see Rita v. United States, 551 U.S. 338,
127 S. Ct. 2456 (2007) “But the defendant must be given
an opportunity to draw the judge’s attention to any
factor listed in section 3553(a) that might warrant a sen-
tence different from the guidelines sentence, for it is
possible for such a variant sentence to be reasonable and
thus within the sentencing judge’s discretion under the
14 No. 08-2357
new regime in which the guidelines, being advisory, can
be trumped by section 3553(a), which as we have
stressed is mandatory.” Dean, 414 F.3d at 730-31.
At oral argument, Young’s counsel asserted that Young
received “a pre-Booker sentence in a post-Booker world.”
Young’s premise is not that the district court mistakenly
treated the Guidelines as binding, but rather that the
court, in neglecting to explicitly address the mitigating
factors that her counsel had cited in support of a below-
Guidelines sentence, did not fully comply with its obliga-
tion to determine a reasonable sentence in view of
section 3553(a)’s broad sentencing criteria. See United
States v. Villegas-Miranda, 579 F.3d 798, 801-02 (7th Cir.
2009).
This would be true as to any principal arguments that
were “not so weak as to not merit discussion,” id. (quoting
United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.
2005)), or in other words, arguments that were “sub-
stantial,” United States v. Martinez, supra, 520 F.3d at 753.
But in addition to arguments that clearly lack merit, see,
e.g., United States v. Miranda, 505 F.3d 785, 792 (7th Cir.
2007) (quoting Cunningham, 429 F.3d at 678), a sentencing
judge may reject without discussion “stock arguments”
that are made as a matter of routine. Martinez, 520 F.3d
at 753. A number of Young’s arguments appear to fall
into the latter category: for example, that she is a
divorced mother of two, had no prior criminal history,
and was restricted to home and work prior to trial. See id.More to the point, Young has not attempted to explain
which of her arguments, if any, had substantial merit
No. 08-2357 15
and why, or even to identify which of them were her
principal arguments. See Villegas-Martinez, 579 F.3d at 801(sentencing court need only respond to defendant’s
principal arguments, not every “pithy” argument she
might raise). In fact, Young has not individually
addressed any of the mitigating factors she raised below;
she simply asserts that none of them was frivolous,
leaving it to us to sort through them all to determine
which might have sufficient merit to demand the
district court’s explicit attention. That is not our role. See
Mykytiuk, 415 F.3d at 608 (defendant can rebut presump-
tion of reasonableness attending within-Guidelines sen-
tence only by showing sentence is unreasonable when
measured against section 3553(a) factors). We add that
none of the factors she argued to the district court
strikes us as sufficiently meritorious on its face to have
demanded explicit comment by the court.
The district court complied with its obligations in
sentencing Young. The court referenced the section
3553(a) factors, see United States v. Williams, 425 F.3d 478,
480 (7th Cir. 2005) (judge need not make findings as to
each of statutory factors so long as record indicates it
gave them meaningful consideration), and indicated
both that it had considered the arguments advanced by
Young’s counsel and that it, had, in fact, been persuaded
to reduce the sentence from the top to the bottom of the
Guidelines range. The court articulated a rationale for
not imposing a sentence below the range, as Young had
asked, explaining that it viewed the Guidelines as “light”
with respect to Young’s offense and that Young had
received a number of breaks in the manner in which the
16 No. 08-2357
Guidelines had been applied.1 See United States v. Laufle,
433 F.3d 981, 987 (7th Cir. 2006) (“A concise statement of
the factors that caused the judge to arrive at a particular
sentence, consistent with section 3553(a), will normally
suffice.”); see also Rita, 551 U.S. at 356, 127 S. Ct. at 2468(“The sentencing judge should set forth enough to
satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.”). The
Guidelines range was properly calculated, and the sen-
tence imposed fell within that range. As such, it is pre-
sumptively reasonable, and Young has not rebutted
that presumption.
III.
The district court properly determined Young’s offense
level, and although the court did not expressly address
the factors she cited in support of a below-Guidelines
sentence, Young has not shown which of those factors, if
any, was sufficiently meritorious to require explicit dis-
cussion by the court or to rebut the presumption of rea-
1
Those breaks included the district court’s decision to treat the
criminal activity that Young supervised or managed as in-
volving fewer than five participants and thus to impose a two-
level rather than a three-level enhancement for her ag-
gravating role in the offense, see U.S.S.G. § 3B1.1(b) and (c), and
the court’s decision to deem Young as having been convicted
of only one pseudo count despite the multiple victims
involved, see U.S.S.G. § 2G1.1(d)(1) & comment. (n.5).
No. 08-2357 17
sonableness that we attach to the within-Guidelines
sentence that the court imposed. We therefore A FFIRM
the sentence.
12-23-09