United States v. Dwane Washington

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4132
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DWANE WASHINGTON, a/k/a Cisco,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:12-cr-00085-JAG-1)
Argued: December 12, 2013 Decided: February 28, 2014
Before TRAXLER, Chief Judge, and DIAZ and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Chief Judge Traxler and Judge Floyd joined.
ARGUED: James Brian Donnelly, J. BRIAN DONNELLY, P.C., Virginia
Beach, Virginia, for Appellant. Brian R. Hood, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON
BRIEF: Neil H. MacBride, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia; Christopher W.
Bascom, Third Year Law Student, UNIVERSITY OF RICHMOND LAW
SCHOOL, Richmond, Virginia, for Appellee.
DIAZ, Circuit Judge:
A jury convicted Dwane Washington of violating 18 U.S.C.
§ 2423(a), which prohibits the interstate transportation of a
minor with the intent that the minor engage in prostitution or
other criminal sexual activity. He was sentenced to 240 months’
imprisonment. Washington challenges his conviction, arguing
that § 2423(a) requires the government to prove that he knew his
victim was underage. He also contends that the district court
abused its discretion by imposing an upward variance. For the
reasons that follow, we affirm.
I.
On appeal from a criminal conviction, we recite the facts
in the light most favorable to the government. United States v.
Smith, 701 F.3d 1002, 1004 (4th Cir. 2012).
A.
In the spring of 2012, Washington, then thirty-two years
old, met R.C., a fourteen-year-old runaway. Washington
approached R.C. on a street in Maryland, where she had already
begun engaging in prostitution and using drugs. Almost
immediately, he became her pimp. At some point, R.C. told
Washington that she was nineteen years old. Washington took
R.C. to Nashville and Clarksville, Tennessee; Birmingham and
Huntsville, Alabama; and Richmond, Virginia. In each city,
2
Washington used the internet to advertise R.C. as a prostitute.
He developed a pricing scale and kept nearly all of the
proceeds, which he used to pay for food, lodging, travel, and
drugs. Washington also had sex with R.C. on multiple occasions.
In Birmingham, R.C. was arrested and charged with
prostitution. She gave the police a false name and date of
birth, claiming that she was nineteen years old.
Washington and R.C. were later arrested in Richmond in an
FBI sting operation. During an interview with an FBI agent,
R.C. confirmed that Washington was her pimp.
B.
A grand jury charged Washington with the interstate
transportation of a minor with the intent that the minor engage
in prostitution or other criminal sexual activity, in violation
of 18 U.S.C. § 2423(a). At trial, the district court instructed
the jury that “the government d[id] not have to prove that the
defendant knew that the individual he transported across state
lines was under the age of 18 at the time she was transported”
in order to convict him under § 2423(a). J.A. 376. As the
district court explained, “the defendant’s knowledge of the age
of the individual he transported is not part of the proof
required by the government in order to sustain a conviction
. . . .” Id. at 377. The jury subsequently found Washington
guilty.
3
After the guilty verdict, the district court filed the
following presentencing notice: “The Court is hereby placing
the parties on notice that the Court will consider sentencing
Mr. Washington outside of the guideline range. Specifically, at
the sentencing hearing, the Court will consider sentencing Mr.
Washington above the guideline range up to the statutory
maximum.” J.A. 411.
The presentence investigation report (the “PSR”)
subsequently calculated an offense level of 30, a criminal
history category of IV, and a resulting advisory Guideline
sentencing range of 135 to 168 months’ imprisonment. Prior to
sentencing, the government moved for an upward departure and a
variance, seeking a sentence between 188 and 235 months.
At Washington’s sentencing hearing, the district court
stated that it would not impose an upward departure but was
considering a variance, and it then permitted the parties to
address the issue. Afterward, the court discussed the 18 U.S.C.
§ 3553(a) factors and decided to impose an upward variance.
Ultimately, the court sentenced Washington to 240 months’
imprisonment.
II.
The issues before us on appeal are twofold: (1) whether
the district court erred in instructing the jury that the
4
government did not have to prove that Washington knew R.C. was a
minor, and (2) whether the court erred by imposing an upward
variance. We consider each question in turn. 1
A.
Washington first challenges the jury instruction that the
government was not required to prove that he knew R.C. was
underage. We review de novo a claim that a jury instruction did
not correctly state the applicable law. United States v.
Mouzone, 687 F.3d 207, 217 (4th Cir. 2012), cert. denied, 133 S.
Ct. 899 (2013).
Section 2423(a) of Title 18 provides:
A person who knowingly transports an individual who
has not attained the age of 18 years in interstate or
foreign commerce, or in any commonwealth, territory or
possession of the United States, with intent that the
individual engage in prostitution, or in any sexual
activity for which any person can be charged with a
criminal offense, shall be fined under this title and
imprisoned not less than 10 years or for life.
1
After formal briefing, Washington, acting pro se, filed a
lengthy document styled as a notice of supplemental authority.
We decline to consider the filing. Issues that Washington
failed to raise in his opening brief are waived, see United
States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006), and
“[w]e do not countenance a litigant’s use of [Federal Rule of
Appellate Procedure] 28(j) as a means to advance new arguments
couched as supplemental authorities,” United States v. Ashford,
718 F.3d 377, 381 (4th Cir. 2013). Moreover, Washington “has no
right to raise substantive issues while he is represented” by
counsel. See United States v. Cox, 577 F.3d 833, 836 (7th Cir.
2009).
5
Washington argues that the term “knowingly” in § 2423(a) applies
to the clause “who has not attained the age of 18 years,”
thereby requiring the government to prove that he knew R.C. was
a minor. He acknowledges that we rejected this argument in
United States v. Jones, 471 F.3d 535, 541 (4th Cir. 2006), which
held that “under § 2423(a) the government is not required to
establish the defendant’s knowledge of the alleged victim’s
age.” Nevertheless, Washington asserts that Jones is no longer
good law after the Supreme Court’s decision in Flores-Figueroa
v. United States, 556 U.S. 646 (2009).
In Jones, we explained that “the adverb ‘knowingly’
modifies the verb ‘transports’” because “[a]dverbs generally
modify verbs, and the thought that they would typically modify
the infinite hereafters of statutory sentences would cause
grammarians to recoil.” 471 F.3d at 539. In our view,
requiring knowledge of the act of transporting the victim--not
knowledge of the victim’s age--was “[a] more natural reading of
the statute.” Id. (internal quotation marks omitted).
But Jones did not rely on the text of § 2423(a) alone.
Rather, our interpretation was also supported by § 2423(a)’s
more general counterpart, 18 U.S.C. § 2421. See id. That
provision punishes “[w]hoever knowingly transports any
individual in interstate or foreign commerce . . . with intent
that such individual engage in prostitution, or in any sexual
6
activity for which any person can be charged with a criminal
offense.” 2 § 2421. As a textual matter, the only differences
between the two statutes are that § 2421 does not include an age
element and imposes a lesser punishment.
In Jones, we noted that it would be implausible for the
knowledge requirement in § 2421 to modify the noun “individual.”
471 F.3d at 539. And we concluded that it would be similarly
“implausible to suggest that, in § 2423(a), where the noun
‘individual’ is modified by the clause ‘who has not attained the
age of 18 years,’ the term ‘knowingly’ suddenly applie[d] to
both the noun and its dependent clause.” Id. Grammar problems
aside, we deemed it “unlikely that, in providing extra
protection for minors in § 2423(a), Congress intended to make
the evidentiary burdens of that provision disproportionate to
those of § 2421.” Id.
Finally, we explained that only our interpretation was
consistent with congressional intent. Id. at 540. “Under
2
Section 2421 reads in full as follows:
Whoever knowingly transports any individual
in interstate or foreign commerce, or in any
Territory or Possession of the United
States, with intent that such individual
engage in prostitution, or in any sexual
activity for which any person can be charged
with a criminal offense, or attempts to do
so, shall be fined under this title or
imprisoned not more than 10 years, or both.
7
§ 2423(a), the fact that the individual being transported is a
minor creates a more serious crime in order to provide
heightened protection against sexual exploitation of minors.”
Id. (internal quotation marks omitted). The defendant’s view of
the statute, on the other hand, “would strip [it] of its clear
purpose: the protection of minors.” Id. Indeed, “[i]mposing
such a mens rea requirement would be tantamount to permitting
adults to prey upon minors so long as they cultivate ignorance
of their victims’ age.” Id. For these reasons, we held in
Jones that “under § 2423(a) the government is not required to
establish the defendant’s knowledge of the alleged victim’s
age.” Id. at 541 (emphasis added).
Washington contends that Flores-Figueroa undermines our
analysis in Jones. We disagree. In Flores-Figueroa, the
Supreme Court considered an aggravated identity theft conviction
under 18 U.S.C. § 1028A(a)(1). See 556 U.S. at 647. That
statute punishes an individual who, while committing other
enumerated crimes, “knowingly transfers, possesses, or uses,
without lawful authority, a means of identification of another
person.” 18 U.S.C. § 1028A(a)(1) (emphasis added). The
question presented was “whether the statute requires the
Government to show that the defendant knew that the ‘means of
identification’ he or she unlawfully transferred, possessed, or
used, in fact, belonged to ‘another person.’” Flores-Figueroa,
8
556 U.S. at 647. The Court concluded that it does. Id. It
reasoned that “[a]s a matter of ordinary English grammar, it
seems natural to read the statute’s word ‘knowingly’ as applying
to all the subsequently listed elements of the crime.” Id. at
650.
Nevertheless, the Court did not purport to establish a
bright-line rule that a specified mens rea always applies to
every element of the offense. Instead, it approvingly cited
Justice Alito’s concurrence for the proposition that “the
inquiry into a sentence’s meaning is a contextual one.” Id. at
652. The majority noted that some statutes may “involve special
contexts or themselves provide a more detailed explanation of
background circumstances” that call for a different result, but
it did not find a “special context” in the case before it. Id.
Justice Alito wrote separately out of a “concern[] that the
Court’s opinion may be read by some as adopting an overly rigid
rule of statutory construction.” Id. at 659 (Alito, J.,
concurring). He agreed with the general presumption that the
specified mens rea applies to all of the offense’s elements but
emphasized that context may rebut that presumption. Id. at 660.
As an example, he referenced § 2423(a)--the statute at issue
here--and noted that the courts of appeals have uniformly held
that knowledge of the victim’s age is not required. Id.
9
Several circuits have addressed the effect of Flores-
Figueroa on § 2423(a) and have universally concluded that the
knowledge requirement does not apply to the victim’s age. See
United States v. Tavares, 705 F.3d 4, 19-20 (1st Cir.), cert.
denied, 134 S. Ct. 450 (2013); United States v. Daniels, 653
F.3d 399, 410 (6th Cir. 2011); Cox, 577 F.3d at 838; cf. United
States v. Daniels, 685 F.3d 1237, 1248 (11th Cir. 2012), cert.
denied, 133 S. Ct. 1240 (2013) (adopting the reasoning of
circuits that have considered the issue under § 2423(a), and
“find[ing] that § 2422(b) likewise does not require that the
government prove that a defendant knew his victim was under the
age of eighteen in order to convict”). “These circuits agree
that the context of § 2423(a) compels a reading of the statute
that does not require ‘knowingly’ to be applied to the victim’s
age.” Tavares, 705 F.3d at 19 (internal quotation marks
omitted).
We agree with our sister circuits and join them today.
Flores-Figueroa does not undermine our decision in Jones. To
the contrary, the “special context” of § 2423(a) supports our
previous interpretation of the statute. See Flores-Figueroa,
556 U.S at 660 (Alito, J., concurring) (listing § 2423(a) as an
example of a potential special context).
We previously identified this “special context” in Jones,
although we did not use that phrase. As we then noted, Congress
10
enacted the provision to provide minors with special protection
against sexual exploitation. See Jones, 471 F.3d at 540. It
was intended “to protect young persons who are transported for
illicit purposes, and not transporters who remain ignorant of
the age of those whom they transport.” Id. (internal quotation
marks omitted). In the time since circuit courts first
interpreted § 2423(a) as we did in Jones, Congress has amended
the statute numerous times but has never changed it to require
the result Washington urges here. See id. at 539. Viewed in
context, the purpose of § 2423(a) is to make a victim’s underage
status an aggravating factor in order to provide minors with
special protection--not to make the provision protecting minors
more difficult to prove than its more general counterpart in
§ 2421. See id.
This special context is sufficient to rebut the general
presumption that a specified mens rea applies to all elements of
the offense. Flores-Figueroa thus does not compel a different
result from the one we reached in Jones. Accordingly, the
district court correctly instructed the jury that under
§ 2423(a), the government was not required to prove that
Washington knew that R.C. was a minor.
B.
We next consider whether the district court abused its
discretion by imposing an upward variance. We review a criminal
11
sentence for procedural and substantive reasonableness under a
deferential abuse-of-discretion standard. See Gall v. United
States, 552 U.S. 38, 51 (2007). We must defer to the district
court and affirm a reasonable sentence, even if we would have
imposed something different. See United States v. McNeill, 598
F.3d 161, 166 (4th Cir. 2010). In reviewing a variant sentence,
“we consider whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing
range.” United States v. Hernandez-Villanueva, 473 F.3d 118,
123 (4th Cir. 2007).
Washington first contends that the district court did not
consider the advisory sentencing range in the PSR.
Specifically, he argues that the district court’s presentencing
notice shows that the court ignored the Guidelines because it
issued the notice before the PSR was filed.
This argument misconstrues the facts. In its notice, the
district court explained that it would “consider sentencing Mr.
Washington outside of the guideline range.” J.A. 411 (emphasis
added). Contrary to Washington’s assertion, the notice does not
suggest that the district court decided to sentence Washington
outside of the Guidelines before it reviewed the PSR. Moreover,
at the sentencing hearing, the court discussed the contents of
the PSR and adopted the report’s factual findings. Based on our
12
review of the record, we find that the district court considered
Washington’s advisory sentencing range before imposing its
sentence.
Washington also argues that the district court improperly
focused on R.C.’s age and vulnerability to justify the upward
variance. He emphasizes that he only knew R.C. for a short
time, believed that she was an adult, and did not introduce her
to prostitution or drugs.
We find no abuse of discretion in the district court’s
consideration of these factors. Indeed, the district court
recognized that R.C. had used drugs and engaged in prostitution
before meeting Washington, but it explained:
It is tragic because the victim herself was clearly,
as Mr. Washington just pointed out -- and I think as
Mr. Hood referred to -- she was already a young lady
who was in deep trouble. She was already a
prostitute. . . . She was a crack addict. But, in a
sense, in a very, very real sense, that vulnerability
is what opened her up to be a victim in this
offense. . . . She was abused. She was addicted to
crack. And I am amazed how Mr. Washington saw that
and honed in on that.
J.A. 575. The district court also specifically noted that
Washington’s belief that R.C. was nineteen years old “is
something in his favor.” J.A. 576.
The district court carefully considered the advisory
sentencing range and the relevant sentencing factors under
§ 3553(a). For example, the court emphasized that Washington
13
manipulated R.C., took provocative pictures of her, pocketed her
money, threatened her, and had sex with her.
The court ultimately concluded that the advisory sentencing
range neither provided adequate deterrence nor adequately
protected the public. In summarizing its reasons for the 240-
month prison sentence, the court emphasized that Washington was
unrepentant, that he bragged about his criminal drug activity,
and that he used his intelligence for “evil” purposes. J.A.
582. Moreover, the court relied on Washington’s extensive
criminal history, which included adult convictions for
possession of crack cocaine, possession of marijuana, possession
of a weapon during the commission of a felony, theft, failure to
appear, and vandalism, as well as serious drug trafficking
charges. In fact, every year from the age of nineteen until the
date of Washington’s sentencing in this case, Washington either
committed at least one crime or was incarcerated. The record
thus provides ample support for the district court’s decision to
impose an upward variance.
We also hold that the extent of the variance was
reasonable. The advisory sentencing range was between 135 and
168 months’ imprisonment, and the district court sentenced
Washington to a term of 240 months. The court reasonably
concluded that this variance was necessary to deter Washington
from committing future crimes and to protect the public.
14
Although the sentence imposed is approximately one-and-a-half
times longer than the high end of the advisory range, it is well
below the statutory maximum of life imprisonment and “serves the
§ 3553(a) factors.” See Hernandez-Villanueva, 473 F.3d at 123
(holding that a sentence three times the high end of the
advisory sentencing range was reasonable). We decline to
disturb the district court’s chosen sentence.
III.
For the reasons given, we affirm the district court’s
judgment.
AFFIRMED
15