United States v. Bertram Jeronomy Harrison

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10293
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-00027-SPM-GRJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERTRAM JERONOMY HARRISON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(August 28, 2013)
Before HULL, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
Bertram Harrison appeals his 156-month sentence, imposed after he pled
guilty to sex trafficking of a minor, in violation of 18 U.S.C. §§ 1591(a)(1), (b)(2),
and 2. In calculating Harrison’s sentence, the district court applied a two-level
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enhancement, under U.S.S.G. § 2G1.3(b)(2)(B), after finding that Harrison did not
rebut the presumption, based on age differential, that he unduly influenced a
fourteen-year-old minor to engage in prohibited sexual conduct. On appeal,
Harrison argues that the district court clearly erred in applying the enhancement
since the victim willingly engaged in prostitution. After careful review, we affirm.
We review a district court’s application of the Sentencing Guidelines de
novo, and its factual findings for clear error. United States v. Lebowitz, 676 F.3d
1000, 1015 (11th Cir. 2012).
The Guidelines provide a two-level sentence enhancement if “a participant .
. . unduly influenced a minor to engage in prohibited sexual conduct.” U.S.S.G. §
2G1.3(b)(2)(B). “In determining whether subsection (b)(2)(B) applies, the court
should closely consider the facts of the case to determine whether a participant’s
influence over the minor compromised the voluntariness of the minor’s behavior.”
U.S.S.G. § 2G1.3, comment. (n. 3(B)). Application Note 3(B) further provides
that, where a participant is at least ten years older than the minor, there is a
rebuttable presumption of undue influence. Id. “In such a case, some degree of
undue influence can be presumed because of the substantial difference in age
between the participant and the minor.” Id.
Our interpretation of the undue influence enhancement under §
2A3.2(b)(2)(B) -- the guideline for criminal sexual abuse of a minor under 16 years
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of age -- applies to § 2G1.3(b)(2)(B). United States v. Jerchower, 631 F.3d 1181,
1186 n.2 (11th Cir. 2011). Under both guidelines, there is a rebuttable
presumption that a participant unduly influenced the minor when the participant is
at least ten years older than the victim. See U.S.S.G. § 2A3.2, comment. (n. 3(B));
U.S.S.G. § 2G1.3, comment. (n. 3(B)).
In determining whether the defendant’s conduct rebutted the presumption,
we “may look to a variety of factors, including whether [the conduct] displays an
abuse of superior knowledge, influence and resources.” United States v. Root, 296
F.3d 1222, 1234 (11th Cir. 2002), superseded by Amend. 732, U.S.S.G. Supp. to
App’x C (2009), as recognized in Jerchower, 631 F.3d at 1186-87. In Root, the
defendant attempted to rebut the presumption of undue influence under §
2A3.2(b)(2)(B), by arguing that “even if an actual victim is not necessary, his
conduct would have repulsed an actual 13-year-old girl and not persuaded her to
engage in sexual activity.” Id. at 1235. However, we affirmed the district court’s
finding that the defendant failed to rebut the presumption of undue influence,
because the defendant sought to influence the “minor,” an undercover officer, by
describing in detail sexual activities that would “feel good,” using his office
computer to send instant messages and pictures of himself to her, driving his car
across three states to meet her, and telling her that she would not need to worry
about bringing money to their meeting. Id. at 1235-36. Similarly, in United States
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v. Vance, 494 F.3d 985, 996 (11th Cir. 2007), superseded by Amend. 732,
U.S.S.G. Supp. to App’x C (2009), as recognized in Jerchower, 631 F.3d at 1186-
87, we affirmed the district court’s application of § 2G1.3(b)(2)(B). There, the
defendant used his knowledge of computers and the internet, as well as his
financial resources, to contact an undercover agent whom he believed could
influence fictitious minors to engage in sexual relations with him in Costa Rica.1
Here, the district court did not clearly err in applying the two-level
enhancement. For starters, because Harrison was 20 years older than the victim,
the court correctly applied the rebuttable presumption of undue influence.
U.S.S.G. § 2G1.3, comment. (n. 3(B)). Moreover, the record supports the court’s
finding that Harrison had not rebutted the presumption as laid out in Root.
First, Harrison’s superior knowledge was evidenced by his: (1) knowledge
of computers and the internet to create advertisements depicting the victim; (2)
instructing the victim on how to answer the phone, how much to charge, and
generally training the victim on the details of her work; and (3) advising the victim
where in the motels to take her customers. See Vance, 494 F.3d at 996 (observing
1
Amendment 732 amended the commentary to § 2G1.3 to expressly provide that the
undue influence enhancement does not apply in a case when an undercover officer is acting as
the minor victim. Jerchower, 631 F.3d at 1184; see also U.S.S.G. § 2G1.3, comment. (n. 3(B)).
Because Root and Vance involved situations in which the only minor victims were fictitious,
those cases were superseded to the extent that they held that the undue influence enhancement of
either § 2A3.2(b)(2)(B) or § 2G1.3(b)(2)(B) applied to cases in which there was no real victim.
Although Amendment 732 clarified that the undue influence enhancement does not apply unless
there is a real victim, it did not otherwise alter the analysis we’ve used to determine whether
undue influence was exerted. Accordingly, we may still rely on Root and Vance in this case.
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that the defendant had used his knowledge of computers and the internet to unduly
influence the “victim”); see also Root, 296 F.3d at 1235 (considering defendant’s
superior knowledge as a factor causing undue influence). Second, Harrison’s
superior resources were evidenced by his: (1) laptop computer, used to advertise
the victim for sexual purposes; (2) payment for the internet advertisements and
motel rooms; (3) purchasing resources for the victim, including sex devices,
lubricant, and condoms; and (4) transporting the victim in his vehicle from her
home to motels or private residences. See Vance, 494 F.3d at 996 (observing that
a defendant had used financial resources to unduly influence the “victim”); see also
Root, 296 F.3d at 1236 (observing that a defendant had used his computer to send
instant messages, used his vehicle to drive across three states to meet the “victim,”
and told her that she did not need to bring money to their meeting). Third,
Harrison’s superior influence was shown by the fact that he convinced the victim
to engage in prostitution and give Harrison half the proceeds, when police had no
information or evidence that the victim had previously been a child prostitute.
Finally, because Root and Vance remain good law concerning what behavior
is relevant to rebutting the presumption of undue influence, we need not rely on
United States v. Myers, 481 F.3d 1107 (8th Cir. 2007), an Eighth Circuit opinion.
In any event, the facts in Myers, where the victim testified in a deposition that she
willingly ran away from home with the defendant, are not present in this case.
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AFFIRMED.
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