United States v. Dawan Oliver

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1056
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UNITED STATES OF AMERICA
v.
DAWAN OLIVER, a/k/a Thug, a/k/a Finesse
Dawan Oliver, Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1-05-cr-00443-005)
District Judge: The Honorable Yvette Kane
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ARGUED APRIL 27, 2011
BEFORE: BARRY, HARDIMAN, and NYGAARD, Circuit Judges.
(Filed: June 29, 2011)
Kyle W. Rude, Esq. (Argued)
Schemery Zicolello
333 Market Street
Williamsport, PA 17701
Counsel for Appellant
Daryl F. Bloom, Esq.
James T. Clancy, Esq.
Gordon A.D. Zubrod, Esq. (Argued)
Office of the United States Attorney
228 Walnut Street, PO Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Dawan Oliver pleaded guilty to a conspiracy to transport individuals to engage in
prostitution, coercing and enticing individuals to travel in interstate commerce for
prostitution, and interstate travel with intent to distribute proceeds of prostitution, in
violation of 18 U.S.C. §§ 371, 2421, 2422(a) and 1952(a). He also pleaded guilty to a
separate count of interstate transportation for purposes of prostitution, in violation of 18
U.S.C. § 1952(a)(3) and (2). The District Court sentenced Oliver to 108 months of
imprisonment, three years of supervised release, a fine of $1,000 on Count 1, and an
assessment of $100 on each count.
Quoting Oliver’s brief, he raises the following issues on appeal.
I. Whether the cross-reference to section 2A3.1 of the
advisory guidelines applies because (1) no sufficient evidence
exists that Mr. Oliver caused by use of force a minor to
engage in prostitution and (2) no sufficient evidence exists
indicating that the actions of other co-defendants were
foreseeable to Mr. Oliver.
II. Whether Section 2G1.3 of the advisory guidelines applies
because any acts involving the use of juveniles by others
cannot be attributed to Mr. Oliver under the relevant conduct
standards of section 1B1.3 in that such acts were not
foreseeable to Mr. Oliver as part of the conspiracy.
III. Whether the District Court erred in increasing appellant’s
sentence by two levels for vulnerable victims and by another
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two levels for the number of victims and inaccurately applied
section 3A1.1(b) of the Advisory Guidelines.
IV. Whether District Court’s [sic] erred by increasing
appellant’s sentence by four levels for his role in the offense
under section 3B1.1(a) of the advisory guidelines by
incorrectly designatingvictims [sic] as participants.
Appellant’s Brief, p. 2.
Oliver avers that the starting point for the calculation of his sentence should be
U.S. Sentencing Guidelines Manual § 2G1.1 (2007), rather than section 2G1.3. He also
maintains that the cross-reference to section 2A3.1 is inappropriate because he was not
convicted under 18 U.S.C. §§ 2421 or 2422 and the evidence does not support a
conclusion that he personally prostituted minors. Oliver concedes that section 2G1.3 is
applicable to him if the acts of others in the conspiracy are attributable to him under
section 1B1.3. He asserts, however, that co-conspirator conduct was not foreseeable to
him.
Evidence was before the District Court that Oliver prostituted a fourteen year-old
girl. Oliver also participated in an effort to prevent a victim, who was a minor, from
testifying against a fellow pimp. Moreover, co-conspirators prostituted minors between
the ages of twelve and sixteen. While he claims to have been different from other pimps
because he used tactics that were not forceful or threatening, the environment of fear and
manipulation created and sustained by the conspirators for the purpose of continuing the
prostitution of their victims was pervasive in this operation and is attributable to Oliver.
All of this evidence is fatal to his argument concerning the District Court’s use of section
2G1.3 and the inapplicability of the cross-reference. The District Court did not err.
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We also easily dispose of Oliver’s challenge to the enhancement for vulnerable
victims, under section 3A1.1(b)(1). The conspiracy to which Oliver pleaded guilty
recruited new victims for prostitution by targeting and manipulating victims like a twelve
year-old girl, a minor who had a cognitive impairment, and numerous juveniles from
troubled personal and familial circumstances. These conditions were not incidental to the
victimization. The District Court properly applied the enhancement.
Finally, Oliver complains that, in light of the District Court’s finding that he was
not a leader among his co-conspirators, the District Court’s application of the
leader/organizer enhancement, pursuant to section 3B1.1(a), is error. Yet, Oliver’s guilty
plea subjected him to a statutory maximum of 120 months, well below the Guidelines
range of life imprisonment that would have been applicable without the plea agreement.
Moreover, the District Court ultimately sentenced him to 108 months of imprisonment,
after taking into account 18 U.S.C. § 3553(a) factors. For these reasons, we need not
reach the merits of his claim since, even if application of the four-point enhancement was
error, it was harmless because his sentence was dictated not by an erroneous Guidelines
calculation, but rather by the statutory maximum. See United States v. Langford, 516
F.3d 205, 215 (3d Cir. 2008). 1 Although the harmless error doctrine in the sentencing
context is quite narrow, the record here is “unambiguous that the miscalculation of the
range had no effect.” Id. at 217.
1
Oliver also appeals the use of the enhancement for a large number of vulnerable victims
(section 3A1.1(b)(2)), but the record does not indicate that the District Court applied this
enhancement to his sentence. Moreover, as with the leader/organizer enhancement, even
if it had been applied in error, it would have been harmless. See Langford, 516 F.3d at
215.
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For all of these reasons, we will affirm the judgment of sentence of the District
Court.
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