United States v. Mariece Sims

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 4, 2006
No. 05-10303 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00048-CR-ODE-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIECE SIMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 4, 2006)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Mariece Sims appeals his convictions and sentences for kidnapping, in
violation of 18 U.S.C. § 1201; sex trafficking of a minor by coercion and
transporting of a minor in interstate commerce for purposes of prostitution, in
violation of 18 U.S.C. §§ 1591 and 2423(a); and transporting and coercing a
person for purposes of prostitution, in violation of 18 U.S.C. §§ 2421 and 2422(a).1
Sims argues (1) that there was insufficient evidence to convict him because the
government failed to provide sufficient evidence that he used force against the
victim or that he knew the victim was a minor; (2) that the district court erred in
allowing the government to introduce evidence of a prior sexual assault by him
because he was not charged with sexual assault and the evidence was unfairly
prejudicial; and (3) that he should be resentenced under Booker.
I. Background
At trial, the evidence was as follows: Sims and his co-defendant, Dwayne
Thigpen, encountered the victim, Erica Owens, while selling clothes in El Dorado,
Arkansas. Sims knew Owens, and Owens entered their car willingly. The three of
them drove around and smoked marijuana; Owens eventually fell asleep in the
back seat. Owens testified that she awoke to discover they were no longer in El
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The indictment also charged Sims with obtaining the labor of another by force or threat
of force, in violation of 18 U.S.C. § 1589; conspiring to tamper with the victim-witness or
obstruct justice, in violation of 18 U.S.C. §§ 371, 1512(b)(1), and 1512(c)(2); witness tampering,
in violation of 18 U.S.C. § 1512(b)(1); and obstruction of justice, in violation of 18 U.S.C. §
1512(c)(2). The jury acquitted Sims of the above charges.
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Dorado, although she believed Sims would take her home.
The three were in a car accident in Texarkana. When the police reported to
the accident, Owens did not tell them she had been kidnapped; nor did she try to
escape. Owens testified that when the accident occurred, she did not seek the help
of police because she still believed that Sims would return her to El Dorado.
Owens further testified that Sims and Thigpen raped her in their hotel room in
Texarkana. The three next traveled to Mississippi, where, according to Thigpen,2
Sims told Owens to see if she could make some money at the hotel; Owens
returned with $20, which she gave to Sims.
Sims later drove to a truckstop where he instructed Owens to prostitute
herself. Owens returned several times without money, at one point claiming that a
trucker tried to choke her. They next drove to Atlanta, and Sims dropped Owens
off at a flea market on Metropolitan Parkway, an area popular with prostitutes.
Sims bought Owens thongs, a miniskirt and some small shirts and again dropped
her off on Metropolitan Parkway. Thigpen testified that he and Sims watched
Owens as she waited for customers. Eventually, Owens returned with money for
Sims. At one point, Owens disappeared. Owens testified that she had tried to
escape three times. She stated that she had gone to a police station, where she was
2
Thigpen pleaded guilty to transporting a minor across state lines and testified as a
cooperating government witness.
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told to wait. She became tired and went outside, where Sims found her. Sims
slapped her, told her not to disappear again, and continued to send her out on the
street.
Thigpen testified that he told Sims that he did not think Owens wanted to
prostitute herself. Sims said Owens was “his girl” and that he would “handle” her.
Eventually, Owens was picked up by Atlanta Police Officer Freddie Jenkins,
Jr. Jenkins testified that he picked up Owens because she looked so young and
further that he saw a dark SUV circling the block where Owens had been standing.
Owens initially told him Jenkins she was 14 years old, although she revised that to
16 years old when they arrived at the police station. Jenkins took Owens to the
hotel where she had been staying with Sims and Thigpen, and she identified both
Sims and his SUV.
C.R. Whitmire, an investigator with the child exploitation unit of Atlanta’s
police department, testified that Owens was smelly, shaking and wore little
clothing when she was picked up by police. Whitmire had a rape kit administered
to Owens. Georgia Bureau of Investigation expert Lisa Hobgood testified that the
semen from Owens’s rape kit did not match either Sims or Thigpen.
After Owens returned home, Olivia Glosson, Sims’s girlfriend, who is
related to Owens by marriage, urged Owens to drop the charges against Sims.
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Owens agreed and provided two affidavits to the El Dorado prosecutor recanting
the statement she had made to the Atlanta police. At trial, Owens admitted that the
affidavits were false.
The district court admitted the testimony of Sherlon Derks, the alleged
victim of a prior sexual assault by Sims, but instructed that the witness could
provide only a cursory review of the prior crime. Derks testified that one night
while she was dating Sims, he had “snapped” and beat and raped her. Although
Sims was arrested, she requested that the charges be dropped after Sims and his
family threatened her.
Sims failed to move for judgment of acquittal, either at the close of the
government’s case or after the defense rested.
In addition to convicting Sims, the jury made the following specific
findings: that Owens was a vulnerable victim, that she had been sexually exploited,
that the offense involved the use of coercion and involved commercial sex, that
Sims knew or should have known that the victim was a minor, and that Sims was a
leader or organizer.
The probation officer prepared a presentence investigation report (“PSI”),
assigning a base level of 32 for the kidnapping offense. See U.S.S.G. § 2A4.1.
Based on the jury’s special findings, this was increased by one level because the
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victim was not released before seven days had elapsed, see U.S.S.G. §
2A4.1(b)(4)(B), by six levels because the victim was sexually exploited, see
U.S.S.G. § 2A4.1(b)(5), by two levels because Owens qualified as a vulnerable
victim under U.S.S.G. § 3A1.1, and by an additional two levels because Sims was
a leader or organizer under U.S.S.G. § 3B1.1(c). The remaining counts were
grouped together and assigned a base offense level of 19 under U.S.S.G. § 2G1.1,
with a four-level increase for influencing a minor regarding commercial sex under
U.S.S.G. § 2G1.1(b)(4)(B), and another two-level increase for Sims’s role as leader
under U.S.S.G. § 3B1.1(c). Sims’s guidelines range was life in prison.
At sentencing, the district court stated that “the court does have to give you a
life sentence in this case so that is what I’m going to do.” The court further stated
that “[i]f I had a choice, I might not give you a life sentence. But I have to do it
under the guidelines.”
II. Standard of Review
Although this Court ordinarily reviews challenges based on sufficiency of
the evidence de novo, United States v. Starrett, 55 F.3d 1525, 1541 (11th Cir.
1995), where, as here, a defendant has failed to move for judgment of acquittal at
the close of the government’s case and the close of the evidence, we “may reverse
only to prevent a manifest miscarriage of justice.” United States v. Adams, 91
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F.3d 114, 116 (11th Cir. 1996) (citing United States v. Hamblin, 911 F.2d 551,
556-57 (11th Cir. 1990)). “The manifest miscarriage of justice standard ‘require[s]
a finding that the evidence on a key element of the offense is so tenuous that a
conviction would be shocking.’” Id. (citing United States v. Tapia, 761 F.2d 1488,
1492 (11th Cir. 1985)).
This Court reviews a district court’s evidentiary rulings for abuse of
discretion. United States v. Magluta, 418 F.3d 1166, 1177 (11th Cir. 2005).
III. Discussion
A. Sufficiency of the Evidence
Sims first argues that no reasonable jury could have found him guilty of
using force to kidnap Owens because the evidence established that Owens failed to
ask the police for assistance after the accident and that she had opportunities to
escape in Atlanta and failed to do so. He also argues that the government failed to
prove that he knew Owens was under the age of 18.
Here, the evidence established that Sims threatened to beat Owens if she did
not make money and that Owens gave money she made to Sims. In addition, Sims
slapped Owens at least once. Sims watched as Owens prostituted herself on
Metropolitan Parkway. Although the evidence was not overwhelming on the
coercion point, the jury’s verdict did not rise to the level of manifest injustice.
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To establish Sims’s guilt on the sex trafficking of a minor count, the
government had to show that Sims benefitted financially from Owen’s sexual
activity and that Sims knew that (a) force or coercion would be used to cause
Owens to engage in a criminal sex act or (b) that Owens was under the age of 18.
18 U.S.C. § 1591. Moreover, the jury found Owens’s and Thigpen’s testimony to
be credible, which is within the jury’s exclusive province. United States v.
Parrado, 911 F.2d 1567, 1571 (11th Cir. 1990). Here, the record contained
sufficient evidence to support Sims’s convictions.
B. Prior Sexual Assault Evidence
Sims next argues that the district court abused its discretion by admitting
Derks’s testimony regarding an alleged past sexual assault under Rule 413 of the
Federal Rules of Evidence because Sims was not charged with sexual assault in the
instant case. He also argues that the evidence was inadmissible pursuant to Rule
404(b) because its unduly prejudicial effect substantially outweighed any probative
value it might have.
Other crimes evidence “is not admissible to prove the character of a person
in order to show action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. . . .” Fed. R. Evid. 404(b).
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To determine the admissibility of evidence pursuant to Rule 404(b), this Court
requires that the evidence is “relevant to an issue other than the defendant’s
character,” that there is “sufficient proof so that a jury could find that the defendant
committed the extrinsic act,” and that the evidence “possess[es] probative value
that is not substantially outweighed by its undue prejudice” and otherwise meets
the requirements of Rule 404(b). United States v. Miller, 959 F.2d 1535, 1538
(11th Cir. 1992).
Here, the two affidavits Owens filed in an attempt to have the charges in the
instant case dropped put her credibility in doubt. Derks’s testimony regarding
Sims’s and his mother’s conduct in coercing her to drop her charges is thus highly
probative with respect to the witness tampering and obstruction of justice charges.
Moreover, the district court limited the prejudicial effect of Derks’s testimony by
requiring that she not provide details regarding the alleged rape. Accordingly, the
probative value of Derks’s testimony was not substantially outweighed by undue
prejudice, and her testimony was admissible.
C. Sentencing
Finally, Sims argues that his case must be remanded for resentencing in light
of Booker because the district court believed it was obligated to give him a life
sentence under the guidelines.
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Because Sims did not preserve this objection, we review for plain error.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125
S.Ct. 2935 (2005). We find plain error where “(1) there is an error; (2) that is plain
or obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial
and not harmless; and (4) that seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” Id.This Court recognizes two varieties of Booker error: constitutional errors
that arise when a defendant’s sentence is enhanced based on facts not found by the
jury and statutory errors that arise when the defendant is sentenced under a
mandatory guidelines regime. United States v. Shelton, 400 F.3d 1325, 1330 (11th
Cir. 2005). Here, there is no constitutional error, as the jury’s special factual
findings supported the sentencing enhancements.
The district court’s statements, however, make clear that it applied the
guidelines as mandatory. Although the error was not plain at the time of
sentencing, “where the law at the time of trial was settled and clearly contrary to
the law at the time of appeal . . . it is enough that the error be ‘plain’ at the time of
appellate consideration.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct.
1544, 1549 (1997). The court’s error is now plain.
To establish plain error, a defendant also must show there is “a reasonable
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probability of a different result if the guidelines had been applied in an advisory
instead of binding fashion by the sentencing judge in this case.” Rodriguez, 398
F.3d at 1300. A defendant can establish this reasonable probability where the
district court has made statements expressing frustration at the severity of the
guidelines, United States v. Martinez, 407 F.3d 1170, 1174 (11th Cir. 2005), where
the court indicated it would have sentenced the defendant to a lesser sentence if it
had the authority to do so, United States v. Dacus, 408 F.3d 686, 689 (11th Cir.
2005), and where the court expresses dissatisfaction with the sentence required by
the guidelines. United States v. Henderson, 409 F.3d 1293, 1307-08 (11th Cir.
2005). Here, the district court stated that, according to the guidelines, it was
obligated to sentence Sims to life imprisonment and that it might not have handed
down that sentence if it were not so obliged. These statements establish that the
error affected Sims’s substantial rights. Accordingly, we vacate and remand for
resentencing under an advisory guidelines scheme.
AFFIRMED in part, VACATED in part, and REMANDED.
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