United States v. Annette Basa , 817 F.3d 645 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10557
Plaintiff-Appellee,
D.C. No.
v. 1:13-cr-00007-1
ANNETTE NAKATSUKASA BASA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern Mariana Islands
Ramona V. Manglona, Chief District Judge, Presiding
Argued and Submitted
February 12, 2016—Honolulu, Hawaii
Filed March 28, 2016
Before: Susan P. Graber, Jay S. Bybee,
and Morgan Christen, Circuit Judges.
Opinion by Judge Graber
2 UNITED STATES V. BASA
SUMMARY*
Criminal Law
The panel affirmed a sentence for sex trafficking, in
violation of 18 U.S.C. § 1591(a)(1).
The panel held that the enhancement under U.S.S.G.
§ 2G1.3(b)(4)(A), for an offense that “involved the
commission” of a sex act with a child, applies whether or not
the defendant herself engaged in that act.
The panel held that the district court did not engage in
impermissible double-counting by applying both the
§ 2G1.3(b)(4)(A) enhancement and an enhancement under
U.S.S.G. § 2G1.3(b)(2)(B), which applies when a defendant
unduly influenced a minor to engage in prohibited sexual
conduct. The panel wrote that neither provision repeats a
required element of a conviction under § 1591(a), and the two
enhancements take account of separate offense
characteristics.
The panel held that the district court permissibly declined
to depart downward for reduced mental capacity under
U.S.S.G. § 5K2.13.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BASA 3
COUNSEL
Steven P. Pixley (argued), Saipan, Northern Mariana Islands,
for Defendant-Appellant.
Garth R. Backe (argued) and Ross K. Naughton, Assistant
United States Attorneys, Saipan, Northern Mariana Islands,
for Plaintiff-Appellee.
OPINION
GRABER, Circuit Judge:
In exchange for money and drugs, Defendant Annette
Nakatsukasa Basa provided housing for two 15-year-old girls
and facilitated their having sex with adult men. Defendant
pleaded guilty to sex trafficking of children, in violation of
18 U.S.C. § 1591(a)(1).1 The district court sentenced
Defendant to a term of 210 months in prison; she appeals that
sentence pursuant to 18 U.S.C. § 1291 and 1294. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the spring of 2013, two homeless 15-year-old girls,
V.R. and A.J., moved into Defendant’s home on Saipan.
Defendant gave them methamphetamine. She also introduced
1
Title 18 U.S.C. § 1591(a)(1) provides that “[w]hoever knowingly—in
or affecting interstate or foreign commerce . . . recruits, entices, harbors,
transports, provides, obtains, advertises, maintains, patronizes, or solicits
by any means a person . . . knowing . . . that the person has not attained
the age of 18 years and will be caused to engage in a commercial sex act”
is guilty of a crime.
4 UNITED STATES V. BASA
the girls to several adult men and encouraged them to have
sex with the men. In return for facilitating these sexual
encounters with the girls, the men gave Defendant money or
methamphetamine. The girls were sometimes compensated
in food and sometimes not compensated at all.
In June, a concerned citizen contacted the local police
about alleged sexual abuse of V.R. and A.J., later supplying
video footage showing an adult man engaged in sexual
intercourse with two underage girls. The police interviewed
V.R. and A.J. The girls reported that Defendant arranged for
them to have sex with adult men, gave them
methamphetamine, told them to deny being underage or being
sold for sexual purposes, drove them to some of the sexual
encounters, and sometimes demanded that they have sex with
the men while threatening to throw them out of the house if
they refused. The local police referred the matter to the
Federal Bureau of Investigation. Defendant’s arrest followed.
Defendant admitted that she had provided underage girls to
adult men on many occasions; admitted that she had
facilitated the sexual encounters by, among other things,
driving A.J. to a secluded beach where an adult man had sex
with A.J.; and admitted that she had received money and
methamphetamine for facilitating the sexual encounters.
A grand jury indicted Defendant on two counts of sex
trafficking of children, in violation of 18 U.S.C. § 1591(a)(1),
(b)(2), and (c). Pursuant to a plea agreement, Defendant
pleaded guilty to one count of violating 18 U.S.C.
§ 1591(a)(1).2 At sentencing, Defendant presented evidence
2
The appeal waiver in the plea agreement does not bar this appeal
because the waiver applies only to the conviction, not to the sentence.
United States v. Spear, 753 F.3d 964, 970 (9th Cir. 2014).
UNITED STATES V. BASA 5
that she suffers from significantly reduced mental capacity
because of her intellectual disability, exacerbated by post-
traumatic stress disorder resulting from her own history of
sexual abuse.
The court sentenced Defendant to a term of 210 months’
imprisonment. It applied sentencing enhancements under
U.S.S.G. § 2G1.3(b)(4)(A) and (b)(2)(B). The district court
also denied Defendant’s motion, premised on U.S.S.G.
§ 5K2.13, for a reduction in her sentence, reasoning that
Defendant had failed to demonstrate that her diminished
capacity substantially contributed to the commission of the
offense. She brings this timely appeal, challenging her
sentence.
STANDARDS OF REVIEW
“There is an intracircuit split as to whether the standard of
review for application of the Guidelines to the facts is de
novo or abuse of discretion.” United States v. Tanke,
743 F.3d 1296, 1306 (9th Cir. 2014). “There is no need to
resolve this split where, as here, the choice of the standard
does not affect the outcome of the case.” Id. We review for
clear error a district court’s factual findings. United States v.
Laurienti, 731 F.3d 967, 973 (9th Cir. 2013).
DISCUSSION
Defendant argues, first, that U.S.S.G. § 2G1.3(b)(4)(A)
does not apply because she did not, herself, commit a sex act
with either victim. This is an issue of first impression in the
Ninth Circuit. Second, Defendant asserts that it was
impermissible double counting to apply that enhancement
and the one embodied in U.S.S.G. § 2G1.3(b)(2)(B). Finally,
6 UNITED STATES V. BASA
Defendant disputes the district court’s rejection of her request
for a downward departure on account of reduced mental
capacity.
A. U.S.S.G. § 2G1.3(b)(4)(A) applies even though
Defendant did not engage in a sex act with a minor
victim.
Section 2G1.3(b) of the Sentencing Guidelines lists
specific offense characteristics that increase the offense level
for various crimes, including the crime of which Defendant
stands convicted. One such class of cases is described in
subsection (b)(4)(A): If “the offense involved the
commission of a sex act or sexual contact . . . , increase by 2
levels.” As noted, Defendant argues that, because she did not
commit a sex act herself, the enhancement does not apply.
We disagree.
The text of the Guideline is clear. It requires only that the
offense as a whole “involved the commission” of a sex act; it
does not specify that the defendant must have committed the
sex act himself or herself. When the specific offense
characteristics require an act or status on the part of the
defendant himself or herself, the Guidelines plainly so state.
For example, U.S.S.G. § 2G1.3(b)(1)(A) applies only when
“the defendant was a parent, relative, or legal guardian of the
minor.” (Emphasis added.) By contrast, subsection (b)(4)(A)
contains no requirement for the defendant to have committed
a sex act. We must give effect to that textual distinction.
See, e.g., Russello v. United States, 464 U.S. 16, 23 (1983)
(when Congress uses particular text in one section of a statute
but omits it in another section of the same statute, courts
presume that Congress intended a different meaning); see
also United States v. Caceres-Olla, 738 F.3d 1051, 1056 (9th
UNITED STATES V. BASA 7
Cir. 2013) (applying interpretive canon to the Sentencing
Guidelines).
The Guidelines also specify that “specific offense
characteristics . . . shall be determined on the basis of . . . all
acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant.” U.S.S.G. § 1B1.3(a)(1)(A). In the present case,
Defendant aided, abetted, counseled, commanded, induced,
procured, or willfully caused the commission of a sex act
with the minor victims. Defendant aided and abetted the sex
acts in which the child victims engaged; she knew that her
actions of encouraging, transporting, or coercing the victims
would lead to sex acts and received payment for enabling the
sex acts to occur. For that reason, her offense “involved the
commission” of sex acts, and the district court properly
applied U.S.S.G. § 2G1.3(b)(4)(A).
This reading of the Guideline is logical and is supported
by our decision in United States v. Hornbuckle, 784 F.3d 549,
553–54 (9th Cir. 2015). Hornbuckle confronted a slightly
different issue than the one that we address here, but it is
nevertheless instructive. The Hornbuckle defendants ran a
prostitution ring and pimped out (among others) three
homeless minors who lived with the defendants for a time.
Id. at 551. As here, the defendants did not themselves engage
in sex acts with the minors; rather, they caused the minors to
engage in sex acts with others. Id. The defendants argued
that applying the § 2G1.3(b)(4)(A) enhancement constituted
double counting because, according to the defendants,
18 U.S.C. § 1591 required the commission of a sex act. Id. at
553. We disagreed and held that a conviction under § 1591
does not require that a sex act take place. Id. at 554. One can
commit the crime of sex trafficking of a child even if the
8 UNITED STATES V. BASA
child never engages in a sex act. For example, had the
defendant here transported A.J. to an intended sexual
encounter, but been intercepted before sex took place,
Defendant still would have violated § 1591(a)(1) because
Defendant would have, at a minimum, “transport[ed] . . . a
person . . . knowing . . . that the person has not attained the
age of 18 years and will be caused to engage in a commercial
sex act.” Thus, the specific offense characteristic covered by
the Guidelines applies only to a subset of § 1591 offenses,
those in which the aggravating factor—sex with the
child—actually occurred. Although Hornbuckle addressed
the issue presented here only obliquely, the pertinent facts of
Hornbuckle and this case are the same: namely, the
defendants themselves did not engage in sex acts with minors,
but only caused those acts to occur. We upheld the
application of the § 2G1.3(b)(4)(A) enhancement in
Hornbuckle, and we do so again today.
Similarly, in United States v. Willoughby, 742 F.3d 229,
241 (6th Cir. 2014), the Sixth Circuit held that a conviction
under § 1591 did not require the commission of a sex act, a
holding that is consistent with our decision in Hornbuckle.
Significantly for our purposes, the Willoughby court stated
that the § 2G1.3(b)(4)(A) enhancement did not require the
defendant himself to be involved in a sex act in order for the
enhancement to apply. In Willoughby, the defendant had sex
with a minor whom he sheltered, and he then solicited money
in return for the child’s having sex with other men. Id. at
232–33. A jury convicted Willoughby under 18 U.S.C.
§ 1591(a) and (b). Id. at 233. The court applied the
§ 2G1.3(b)(4)(A) sentencing enhancement. Id. at 241.
Willoughby argued that the sentencing enhancement was
improper because his conviction already took his sex act into
account. Id.
UNITED STATES V. BASA 9
The Sixth Circuit was not persuaded. It wrote:
“Willoughby’s offense was complete when he acted with the
requisite knowledge—when he dropped SW off at Tusin’s
residence, for example—and not at the moment of
penetration. His § 2G1.3(b)(4) enhancement was proper.”
Id. (citations omitted). In other words, the enhancement did
not constitute double counting and was proper where (1) the
defendant need not have engaged in a sexual act to be
convicted under § 1591(a), and (2) the defendant caused a sex
act to occur—for example, when he dropped the minor off at
another man’s residence to engage in sex acts. To satisfy the
enhancement, it was not necessary that the defendant himself
engage in sex acts with the minor, so long as the minor
engaged in sex acts with someone as a result of the
defendant’s conduct.
To the extent then that we were not clear in Hornbuckle:
The § 2G1.3(b)(4)(A) enhancement requires only that a sex
act with a child occur—whether or not the defendant himself
or herself engaged in that act. For that reason, the U.S.S.G.
§ 2G1.3(b)(4)(A) enhancement properly applied in
Hornbuckle and properly applied to Defendant in this case.
B. The district court permissibly applied U.S.S.G.
§ 2G1.3(b)(2)(B) as well.
Defendant claims that the district court engaged in
impermissible double counting when it applied both the
(b)(4)(A) enhancement and the (b)(2)(B) enhancement.
Impermissible double counting occurs when a court applies
an enhancement that duplicates a necessary element of the
underlying conviction, or when a court applies two
enhancements that the Guidelines intend to make non-
10 UNITED STATES V. BASA
cumulative. United States v. Smith, 719 F.3d 1120, 1123–25
(9th Cir. 2013). Neither situation is present here.
Section 2G1.3(b)(2)(B) applies when a defendant “unduly
influenced a minor to engage in prohibited sexual conduct.”
Section 2G1.3(b)(4)(A) applies when an offense “involved
the commission” of a sex act. Neither repeats a required
element of a conviction under 18 U.S.C. § 1591(a). Undue
influence of a minor is not a necessary element of this crime.
See United States v. Brooks, 610 F.3d 1186, 1195 (9th Cir.
2010) (describing intent requirement of § 1591(a)). For
example, a defendant could be convicted for transporting a
minor to sexual encounters, knowing that they would occur,
even if someone else influenced the minor to participate.
And as discussed above, a violation of § 1591(a) can be
complete even if no sex act occurs. See Hornbuckle,
784 F.3d at 553–54 (holding that the district court’s
application of a sentencing enhancement under U.S.S.G.
§ 2G1.3(b)(4) “was not double counting because ‘commission
of a sex act or sexual contact’ is not an element of the
[defendants’] convictions for sex trafficking of children under
18 U.S.C. § 1591”).
Similarly, the two enhancements take account of separate
offense characteristics. Here, for instance, the undue
influence enhancement accounts for Defendant’s providing
shelter to homeless runaways and threatening to throw them
out on the street if they did not engage in sex acts in
exchange. By contrast, the other enhancement accounts for
the fact that the minor victims actually engaged in sex acts.
UNITED STATES V. BASA 11
C. The district court permissibly declined to depart
downward for reduced mental capacity.
Under U.S.S.G. § 5K2.13, a downward departure may be
warranted if “(1) the defendant committed the offense while
suffering from a significantly reduced mental capacity; and
(2) the significantly reduced mental capacity contributed
substantially to the commission of the offense.” Defendant
presented expert evidence tending to show that she had a
significantly reduced mental capacity. The district court held,
though, that she failed to meet the second prong of the
Guideline because she did not show that her reduced mental
capacity contributed significantly to the commission of the
offense of conviction.
The district court relied on several factors to reach that
conclusion. Among other things, the court found that
Defendant’s reduced mental capacity resulted in part from the
voluntary use of illegal drugs. That finding is not clearly
erroneous. Section 5K2.13 provides that “the court may not
depart below the applicable guideline range if . . . the
significantly reduced mental capacity was caused by the
voluntary use of drugs or other intoxicants.” In addition, the
court found that Defendant could “maintain her composure
and be acute in . . . formulating her intentions.” Defendant
used deliberate and intelligent methods of carrying out the
offense—such as using fake names and ages for the
victims—which negated the inference that diminished
capacity caused her to commit the offense. Again, those
findings are not clearly erroneous. Because the court came to
a reasonable conclusion, supported by evidence, it
permissibly denied the motion for a downward departure.
AFFIRMED.