United States v. Mark Carter, II

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-1153
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Mark Phillip Carter, II
lllllllllllllllllllllDefendant - Appellant
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Human Trafficking Institute
lllllllllllllllllllllAmicus on Behalf of Appellee(s)
___________________________
No. 19-1172
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Breeanna Lynae Brown, also known as BB
lllllllllllllllllllllDefendant - Appellant
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Human Trafficking Institute
lllllllllllllllllllllAmicus on Behalf of Appellee(s)
___________________________
No. 19-1177
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Sarina Ann Williams
lllllllllllllllllllllDefendant - Appellant
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Human Trafficking Institute
lllllllllllllllllllllAmicus on Behalf of Appellee(s)
___________________________
No. 19-1344
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Ronzell Montez Williams, also known as LV
lllllllllllllllllllllDefendant - Appellant
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Human Trafficking Institute
lllllllllllllllllllllAmicus on Behalf of Appellee(s)
___________________________
No. 19-1345
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Darren O. Coleman, also known as DC
lllllllllllllllllllllDefendant - Appellant
------------------------------
Human Trafficking Institute
lllllllllllllllllllllAmicus on Behalf of Appellee(s)
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Appeals from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: March 12, 2020
Filed: May 29, 2020
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Before ERICKSON, GRASZ, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
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This case involves five defendants: Mark Philip Carter II, Darren O. Coleman,
Sarina Ann Williams, Ronzell Montez Williams, and Breeanna Lynae Brown. All
were members of a prostitution and sex trafficking conspiracy based in Iowa. Each
pleaded guilty to at least one charged offense, and all appeal their sentences. We
affirm.
I.
Carter was charged with several counts related to conspiracy to engage in sex
trafficking and prostitution of five victims. He pleaded guilty to sex trafficking
children. 18 U.S.C. § 1591(a)(1) & (b)(2). Coleman was charged with several counts
relating to conspiracy to engage in sex trafficking and prostitution of two victims. He
pleaded guilty to assisting an individual to engage in prostitution, 18 U.S.C.
§ 2422(a), and to coercing and enticing an individual to engage in prostitution, 18
U.S.C. § 1591(a)(1), (a)(2), & (b)(1).
Prior to sentencing, both Carter and Coleman filed extensive objections to their
presentence investigation reports. Carter argued that his PSR contained information
about counts dismissed as part of his plea agreement and wrongly increased his
offense level for “unduly influenc[ing] a minor to engage in prohibited sexual
conduct,” U.S.S.G. § 2G1.3(b)(2)(B), and for “the commission of a sex act or sexual
contact,” U.S.S.G. § 2G1.3(b)(4)(A). Coleman claimed that his Guidelines range was
improperly enhanced by additional victims when he had not pleaded guilty to conduct
involving those victims. The district court1 overruled these objections and made
factual findings before imposing their sentences. Carter and Coleman were sentenced
to 175 and 300 months in prison, respectively.
1
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
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Sarina pleaded guilty as charged to interstate transportation of an individual to
engage in prostitution, 18 U.S.C. § 2421, and conspiracy to engage in sex trafficking
by force, fraud, or coercion, 18 U.S.C. § 1594(c). The indictment described the
conspiracy as one “to cause ‘Victim 4’ to engage in a commercial sex act, in violation
of 18 U.S.C. § 1591(a)(1), (a)(2) & (b)(1).”
Ronzell and Brown also pleaded guilty to charges under § 1594(c), and the
indictment described their offenses in the same way as Sarina’s except they conspired
to traffic a different victim. Based on the conspiracy charges, the district court set a
base offense level of 34 for all three defendants. The district court sentenced Sarina
to 135 months in prison, Ronzell to 36 months, and Brown to 50 months. Each was
sentenced below their Guidelines range—Ronzell and Brown significantly so.
II.
Carter and Coleman both argue that the district court erred when applying
enhancements to their offense levels. We review the district court’s construction and
application of the Guidelines de novo and its factual findings for clear error. United
States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009).
A.
Carter argues that the district court erred when it applied an enhancement for
exerting “undue influence” over Minor Victim A. See U.S.S.G. § 2G1.3(b)(2)(B).
Whether a defendant unduly influenced a victim is a factual question subject to clear
error review. See United States v. Hagen, 641 F.3d 268, 270 (8th Cir. 2011). The key
question is “whether a participant’s influence over the minor compromised the
voluntariness of the minor’s behavior.” U.S.S.G. § 2G1.3(b)(2)(B) cmt. 3(B).
At sentencing, the evidence showed Carter had physically abused Minor Victim
A. In one instance, he told her to get out of his car and then drove away while she
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was still getting out, hurting her and causing her to fall. Carter’s co-defendant
proffered that he saw Carter hit Minor Victim A. Another victim reported seeing
pictures of Minor Victim A’s face when her “eye was black, literally, like black, it
was swollen shut; her nose was bleeding” as a result of an altercation with Carter.
Carter also emotionally abused Minor Victim A. He would get angry with her when
she wouldn’t “go on a date” he had arranged. Based on this evidence and given that
Carter was nine years older than Minor Victim A, the district court did not clearly err
when it found that Carter unduly influenced her and compromised the voluntariness
of her behavior.
B.
Carter next argues that the district court erred by applying the enhancement for
an offense involving “the commission of a sex act or sexual contact.” See U.S.S.G.
§ 2G1.3(b)(4)(A). The Guidelines authorize a two-level increase if “the offense
involved the commission of a sex act or sexual contact,” id., or if the offense was not
one under 18 U.S.C. § 1591(b) and “ involved a commercial sex act,” U.S.S.G.
§ 2G1.3(b)(4)(B). Carter does not dispute that sex acts occurred. Rather, he makes
the purely legal argument that the enhancement should not apply because his offense
under § 1591(b)(1) involved commercial sex acts, which he views as only enhancing
convictions under different statutes. Any other reading, he argues, would reduce the
special rule for commercial sex acts to “mere surplusage.”
We disagree. Section 2G1.3(b)(4)(A) imposes a two-level increase for any
offense to which § 2G1.3 applies that “involved the commission of a sex act or sexual
contact.” Because Carter’s offense falls under § 2G1.3 and involved the commission
of a sex act, the enhancement applies. This reading does not render § 2G1.3(b)(4)(B)
“mere surplusage.” Where (b)(4)(A) applies to offenses that“involved the commission
of a sex act or sexual contact,” (b)(4)(B) applies only to offenses other than those
under § 1591(b) but is triggered wherever the offense “involved a commercial sex
act.” Because it does not require “the commission of” a commercial sex act, the
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(b)(4)(B) enhancement may be applied, for example, in a case where someone
attempts to coerce a minor into committing a commercial sex act, but no sex act
ultimately occurs. See 18 U.S.C. § 2422(b) (prohibiting, subject to jurisdictional
elements, coercion of minors to engage in criminal sexual activities). The district
court properly applied the enhancement here.
C.
Both Carter and Coleman challenge their enhancements for promoting
commercial sex acts with additional victims (Victims 1 and 2 in Carter’s case,
Victims 5 through 9 in Coleman’s). They argue that because they did not plead guilty
to any charges involving those additional victims and because they objected to the
facts related to those victims in their PSRs, it was inappropriate for the district court
to consider those victims at sentencing.
Both U.S.S.G. § 2G1.3(d), which applies to Carter, and § 2G1.1(d), which
applies to Coleman, prescribe how to account for additional victims. Under these
provisions, where the “relevant conduct of an offense of conviction” includes
promoting a commercial sex act with respect to additional individuals, whether or not
those individuals are referenced in the count of conviction, each victim is treated as
though they were represented by a separate count.” U.S.S.G. §§ 2G1.1 cmt. 5, 2G1.3
cmt. 6. “Relevant conduct” includes “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or willfully caused by the
defendant . . . that occurred during the commission of the offense of conviction.”
U.S.S.G. § 1B1.3(a)(1)(A).
Coleman’s additional victims are relevant conduct under this definition.
Although the charges relating to these victims were dismissed, they still may be
considered to enhance Coleman’s sentence. See United States v. Williams, 879 F.2d
454, 457 (8th Cir. 1989). The broad language in § 1B1.3 “indicates the Sentencing
Commission’s intent to give courts the discretion to consider a broad range of
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conduct in making adjustments,” and so we have declined to infer a limitation
precluding courts from considering conduct related to dismissed counts. Id.
The claim that Coleman’s enhancement lacked supporting factual findings also
fails. The district court made the findings necessary to apply the enhancements to
Coleman and, to the extent that he argues that his plea agreement forbids the
attribution of additional victims, he is mistaken. Coleman’s plea agreement left the
Government free to “make whatever comment and evidentiary offer [it] deem[s]
appropriate at the time of sentencing,” notwithstanding the dismissal of the counts
directly related to these victims.
All of the above would apply equally to Carter, but for one important
difference between the Guidelines provisions at issue. Section 2G1.3(d), unlike
§ 2G1.1(d), specifies that the additional victims used to enhance a sentence under that
section must be minors, and Carter’s were not. Carter therefore argues that his
sentence should not have been enhanced under § 2G1.3(d). Carter first identified this
issue in his reply brief and so we can decline to consider it. United States v. Head,
340 F.3d 628, 630 n.4 (8th Cir. 2003). We do so here, because it is clear from the
record that the district court would have given Carter the same sentence regardless
of his Guidelines recommendation.
III.
Coleman makes two arguments that we cannot consider on appeal. First, he
argues that the district court should not have followed U.S.S.G. § 2G1.1(a)(1) to
apply a base offense level of 34 to his conviction for coercing an individual to engage
in prostitution. In his view, this provision sets up an excessive disparity not based on
empirical data between the base level for offenses under 18 U.S.C. § 1591(b)(1) and
those under all other statutes.
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We do not consider policy arguments about the Guidelines on appeal. United
States v. Riehl, 779 F.3d 776, 778 (8th Cir. 2015) (per curiam). District courts are
free to vary from the Guidelines based on them, but it is not an abuse of discretion for
a district court to decline to do so. United States v. Sharkey, 895 F.3d 1077, 1082
(8th Cir. 2018).
Second, Coleman argues that the district court erred when it denied his motion
for a downward departure for overrepresented criminal history under U.S.S.G.
§ 4A1.3(b)(1). We do not have authority to review that decision because the district
court recognized it had the power to depart downward and Coleman does not argue
it had an unconstitutional motive for failing to do so. United States v. Woods, 596
F.3d 445, 449 (8th Cir. 2010).
IV.
Finally, both Coleman and Carter argue the district court committed procedural
error at sentencing and their sentences were substantively unreasonable. We first
assess whether the district court committed significant procedural error. United
States v. Williams, 624 F.3d 889, 896 (8th Cir. 2010). If we find none, we review the
substantive reasonableness of the sentences, applying a deferential abuse of discretion
standard. United States v. Stoner, 795 F.3d 883, 884 (8th Cir. 2015).
Both Coleman and Carter argue the district court procedurally erred by relying
but never ruling on objected to facts in their PSRs. See United States v. Feemster,
572 F.3d 455, 461 (8th Cir. 2009) (en banc) (A district court commits procedural
error if it sentences “based on clearly erroneous facts.”). Nothing in the record
supports this argument. The district court made factual findings at Carter’s
sentencing that supported its conclusion that he behaved in a “depraved” way and that
society needed protection from him. Carter has failed to identify any moment during
his sentencing when the district court relied on still-disputed facts. See Carter Sent.
Tr. 33. The record is even clearer in Coleman’s case. The district court overruled all
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his objections to the PSR and found that it was “factually accurate as to all material
matters” and sentenced him based on that finding. Coleman Sent. Tr. 87–88.
Coleman claims that his sentence is substantively unreasonable because the
district court failed to account for his history and characteristics and considered his
co-defendants’ actions in setting his sentence.2 A sentence may be substantively
unreasonable if a district court fails to consider a relevant factor that deserves
significant weight, gives significant weight to an inappropriate factor, or commits a
clear error of judgment in weighing the appropriate factors. Stoner, 795 F.3d at 884.
Again, Coleman’s argument finds no support in the record. In fact, the court
considered each § 3553(a) factor, specifically mentioned Coleman’s criminal history,
and grappled with the “astounding depravity” of Coleman’s conduct. We also note
that Coleman’s sentence is below his Guidelines range. It is “nearly inconceivable”
that it could be substantively unreasonable. United States v. Lazarski, 560 F.3d 731,
733 (8th Cir. 2009).
V.
Sarina, Ronzell, and Brown all object to the base offense level of 34 for their
convictions for conspiracy to engage in sex trafficking by force, fraud, or coercion,
in violation of 18 U.S.C. § 1594(c). We review the proper construction of the
Guidelines de novo. Cordy, 560 F.3d at 817.
2
Carter also claims that his sentence is substantively unreasonable, Carter Br.
30, but for support he primarily rehashes his argument that the district court wrongly
considered objected-to portions of his PSR. He also claims his sentence was
substantively unreasonable because the district court failed to explain its sentence in
a way that would facilitate our review. Id. at 34–35. This is really a claim of
procedural error, see Feemster, 572 F.3d at 463, and in any case the district court
provided an adequate explanation of its reasons.
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Conspiracies punished under § 1594(c) are not covered by a specific offense
Guideline, so we begin with the catch-all provision at U.S.S.G. § 2X1.1. Section
2X1.1(a) sets the base offense level for a conspiracy conviction not covered by a
specific Guideline as the “base offense level from the guideline for the [underlying]
substantive offense.” The indictment lists the underlying substantive offense for all
three of these defendants as 18 U.S.C. § 1591(a)(1), (a)(2), & (b)(1). For those
offenses, we refer to § 2G1.1, which prescribes a base offense level of 34 “if the
offense of conviction is 18 U.S.C. § 1591(b)(1)” and 14 if “otherwise.” Because the
underlying substantive offense for all three defendants is § 1591(b)(1) and the
applicable Guidelines provision (§ 2X1.1) directs that we treat these defendants as
though they were convicted under § 1591(b)(1), we conclude the district court
correctly assigned all three of these defendants base offense levels of 34. See United
States v. Sims, 957 F.3d 362, 363 (3d Cir. 2020) (following the same steps to reach
a base offense level of 34).
The defendants suggest otherwise. Noting that § 2G1.1 directs that the base
offense level for any convictions other than those under § 1591(b)(1) should be 14,
they argue they should have received the lower base offense level for their
convictions under § 1594(c). This argument only works if we read § 2G1.1 in
isolation, but we cannot do that. Section 2G1.1 is not the applicable Guideline for
convictions under § 1594(c). We only get there through § 2X1.1, so we must read
§ 2G1.1 in light of § 2X1.1. Even if that were not the case, the specific guidance
from § 2X1.1 comports with the general rule that “[u]nless otherwise specified, an
express direction to apply a particular factor only if the defendant was convicted of
a particular statute includes the determination of the offense level where the
defendant was convicted of conspiracy . . . in respect to that particular statute.”
U.S.S.G. § 1B1.3, cmt. 7. Following both general interpretive principles for the
Guidelines and the specific provisions at issue here, the district court assigned the
correct base offense levels.
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The defendants rely on United States v. Wei Lin, 841 F.3d 823 (9th Cir. 2016)
to support their reading of § 2G1.1. In Wei Lin, the Ninth Circuit held that the base
offense level of 34 applied only in cases where defendants were subject to the
statutory 15-year mandatory minimum sentence described in § 1591(b)(1). Id. at 826.
Because conspiracies under § 1594(c) are not subject to those minimums, the Wei Lin
rule prevents any conspiracy conviction from receiving a base offense level of 34.
We do not believe Wei Lin should govern our decision here. See Sims, 957
F.3d at 364 (noting that applying Wei Lin “lead[s] to absurd results”). The Ninth
Circuit arrived at its rule based on what it believed was “most likely what the
Sentencing Commission intended.” Id. at 827. Because the base offense level of 34
in § 2G1.1(a)(1) was created in response to Congress adding the 15-year mandatory
minimum for trafficking victims under 14 years old, the Wei Lin court concluded that
“the Commission likely intended § 2G1.1(a)(1) to apply only when the defendant
received a fifteen-year mandatory minimum sentence.” Id. Compelling as this
history might be, “[w]hen construing the Guidelines, we look first to the plain
language, and where that is unambiguous we need look no further.” United States v.
Bah, 439 F.3d 423, 427 (8th Cir. 2006). And here, where the applicable Guidelines
provision directs us to apply the provisions of § 2G1.1(a)(1) as though these
defendants were convicted of violating § 1591(b)(1), we find no ambiguity.3
* * *
Finding no error in the defendants’ sentences, we affirm.
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3
The application of the Guidelines is clearer here than it was in Wei Lin. Wei
Lin’s indictment only charged conspiracy to violate § 1591(a) and the conduct at
issue would have qualified him, had he been convicted of the substantive offense, for
sentencing under § 1591(b)(1). 841 F.3d at 825. By contrast, each of these three
defendants were charged with conspiring to violate § 1591(b)(1) itself. We need look
no further than the indictment and U.S.S.G. §§ 2X1.1 & 2G1.1 to properly set the
base offense levels for these defendants.
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