United States v. Bok Young

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2357

U NITED STATES OF A MERICA,

Plaintiff-Appellee,

v.

B OK Y OUNG,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 05 CR 50-3—Rudy Lozano, Judge.

A RGUED F EBRUARY 27, 2009—D ECIDED D ECEMBER 23, 2009

Before M ANION, R OVNER, and T INDER, Circuit Judges.

R OVNER, Circuit Judge. Bok Young helped to run a

day spa in Highland, Indiana, at which she and other

workers provided sexual massages to spa customers.

She was arrested when the spa was raided by local and

federal agents. Young eventually pleaded guilty to con-

spiring to use the facilities of interstate commerce to

facilitate prostitution, see 18 U.S.C. §§ 371 and 1952(a)(3),

and the district court ordered her to serve a prison term

2 No. 08-2357

of eighteen months, the minimum term called for by the

Sentencing Guidelines. Young appeals, contending that

the district court made two errors in calculating her

Guidelines range: characterizing Young’s role in the

offense as that of a manager or supervisor, see U.S.S.G.

§ 3B1.1(b) and (c), and treating Young’s co-workers as

victims whom she had enticed to engage in prohibited

sexual conduct, see U.S.S.G. § 2G1.1(d). Young also

argues that the court failed to give meaningful attention

to the mitigating factors she cited as a basis for a lower

sentence, and that the sentence imposed by the court

is unreasonable. We affirm.

I.

The Barley Spa in Highland, Indiana was one of four

day spas in Highland and Dyer, Indiana that came

under investigation in the autumn of 2005 by the police

departments of those two towns along with the

U.S. Internal Revenue Service, the Federal Bureau of In-

vestigation, and Immigration and Customs Enforcement.

Sun Cha Thompson owned three of the four spas, in-

cluding the Barley Spa. On February 22, 2006, agents

executed search warrants at all four spas. Present at the

Barley Spa when agents searched it were Young and

two other employees: Pok Sun Palmer, who cleaned the

spa and cooked meals for its customers, and Soon Ja Kim,

who provided massages. Palmer and Kim had been

working at the spa for a matter of weeks. Young had been

working there for approximately six months.

The Barley Spa offered its customers standard

massages, but for customers willing to pay a bit more, its

No. 08-2357 3

masseuses were willing to provide masturbation. Young

would later state at her change-of-plea hearing that

customers were charged an entry fee of $50 for 30 minutes

or $70 for an hour of nonsexual massage. Customers

interested in a sexual massage typically paid an extra “tip”

of between $20 to $60; the amount of the tip, if any, was

up to the customer. The masseuses kept whatever tips

their clients paid them for their massages and were not

otherwise paid wages by the spa. The spa in turn made

its money from the fees that customers paid to enter

the spa. Young estimated that at least seventy-five

percent of the spa’s customers were interested in sexual

massages.

Thompson had hired Young in August of 2005 to

handle the spa’s day-to-day operations, including its

bookkeeping. Young was to pay Thompson $1,000 per

month out of the spa’s receipts; from the remainder, she

was to pay herself a salary of $3,000 per month (although

Young would later say that the proceeds were never

sufficient to pay herself that much). Following Young’s

engagement, the spa’s accountant wrote a memorandum

indicating that Young would be replacing Thompson as

the individual “run[ning] things” at the spa. R. 244 at 33.

Within a couple of months, Thompson was no longer

directly involved with the daily operation of the spa

and visited the premises no more than once a week.

Young collected the daily proceeds, paid the spa’s bills,

made sure that the ledger of the spa’s business was in

order for Thompson’s occasional review, took out adver-

tisements, paid the cook her daily wages, hired new

employees, bought groceries for the employees (who

4 No. 08-2357

lived at the spa), and kept Thompson apprised of any

personnel issues. Young looked into Palmer’s immigra-

tion status before hiring her as the spa’s cook and house-

keeper shortly before the raid, and when Palmer began

work, it was Young who showed her around the spa

and instructed her on her responsibilities. Like the spa’s

other employees (excepting Palmer), Young did

provide sexual massages to the spa’s clients. But Young

was the sole employee charged with managing the spa’s

day-to-day operations. There was also evidence that

when customers arrived, Young decided which of the

other masseuses would provide them with services.

Kim, a masseuse who was present at the time of the

raid, would later state that Young was “in control of

everything” at the spa. R. 244 at 72.

In view of Young’s responsibilities, the district court

found that she qualified as a manager or supervisor of the

criminal activity that took place at the spa, thus triggering

a two-level increase in her sentencing level pursuant to

section 3B1.1(c) of the Guidelines. The court noted, among

other factors, that Thompson’s degree of involvement

with the spa decreased after Young was hired, that Young

received a salary in contrast to the other women who

provided sexual massages and were compensated by the

“tips” they received for those services, that she wrote

checks on behalf of the spa (including her own pay-

check), and that Young described her own role as that of

manager in paperwork she completed for an advertise-

ment in a telephone directory and during an interview

that agents conducted in the immediate aftermath of the

raid on the spa. R. 293 at 12-18. The court added that even

No. 08-2357 5

if Young did not qualify as a manager or supervisor of the

other participants in the spa’s criminal activity, she did

“exercise[ ] management responsibility over the prop-

erty[,] assets[,] and activities of the criminal organization,”

which the Sentencing Commission’s advisory notes

recognize as a basis for a longer sentence. R. 293 at 18;

see § 3B1.1, comment. (n.2)

The court concluded that a second, “pseudo count”

enhancement was warranted based on Young’s role in

enticing the other women at the spa to engage in illegal

sexual conduct. See § 2G1.1(d). When a defendant has

been convicted of an offense involving the promotion

of commercial sex acts or other prohibited sexual

conduct and multiple victims, section 2G1.1(d) instructs

the court to calculate the defendant’s offense level as if

the defendant had been convicted of a separate count for

each victim. Because offenses of this nature are not

grouped together for sentencing purposes, see U.S.S.G.

§§ 2G1.1, comment. (n.5) & 3D1.2, additional counts of

conviction trigger an increase in the defendant’s

combined offense level, see U.S.S.G. § 3D1.4. There were

multiple masseuses who worked at the Barley Spa

during Young’s tenure, and because their sole source of

pay was the “tips” they received for sexual massages, the

court treated them as victims of the offense in the sense

that they were “enticed” into engaging in commercial sex

acts. Based on those victims, the court deemed Young to

have been convicted of one additional “pseudo” count,

which resulted in a two-level increase in her offense

level. R. 293 at 20-22.

6 No. 08-2357

Young’s adjusted offense level, together with her lack

of a prior criminal record, called for a sentence in

the range of 18 to 24 months. In a written sentencing

memorandum, Young’s counsel highlighted a variety of

mitigating factors and asked for a “minimal sentence.”

R. 221 at 6. At the final sentencing hearing, Young’s

counsel urged the court to impose a below-Guidelines

sentence of probation, noting that Thompson, the owner

of the spa, had received a term of twenty-seven months

and Thompson’s silent partner and investor had

received probation, that Young had been on work release,

which he characterized as “basically home arrest” for the

preceding two years, R. 293 at 31, and that Young

would not be aided by going to prison. R. 293 at 26-32. The

district court did not specifically address the various

mitigating factors that Young’s counsel had cited. How-

ever, the court did acknowledge its obligation to

consider the sentencing factors set forth in 18 U.S.C.

§ 3553(a) in addition to the Guidelines in deciding

“what a reasonable sentence would be.” R. 293 at 37.

The court then explained why it had concluded that a

sentence at the low end of the Guidelines range was

appropriate for Young:

[I]n this case I think, if anything, the [G]uidelines are

light, but I think they’re light, Ms. Young, in large

part because you’re given the benefit of the doubt

with regards to several portions of the [G]uidelines.

But when there was any question that I felt to be

close enough, I would give you the benefit of the

doubt. When there was a question regarding an en-

No. 08-2357 7

hancement, although in some cases I felt that it might

be justified, again, I gave you the benefit of the doubt.

When I first sat down to consider a sentence in this

case, I thought a sentence at 24 months would be a

reasonable sentence. In listening to your attorney,

I think that I should relook at that number. I have

looked at the probation officer’s recommendations

and the comments from the Government. I have

rethought that sentence, and then I looked at

the Guidelines again, and I have decided upon the

following sentence . . . .

R. 293 at 37. The court proceeded to sentence Young to

a term of eighteen months.

II.

A. Enhancement for Leadership Role in the Offense

For offenses involving multiple participants, section

3B1.1 of the Sentencing Guidelines provides for

aggravating-role enhancements based on the number of

participants involved in the criminal activity and the

defendant’s relative responsibility for committing the

offense. The guideline specifies (a) a four-level enhance-

ment for a defendant who qualifies as an “organizer or

leader” of criminal activity involving five or more partici-

pants or that was otherwise extensive, (b) a three-level

enhancement for a defendant who qualifies as a “supervi-

sor or manager” of criminal activity involving five or

more participants or that was otherwise extensive, and (c)

a two-level enhancement for a defendant who qualifies

8 No. 08-2357

as an organizer, leader, manager, or supervisor of

criminal activity involving fewer participants and that

was not otherwise extensive. The district court found

that Young constituted a supervisor or manager of the

criminal activity that transpired at the Barley Spa, but,

because it assumed that the crime involved less than

five participants and was not otherwise extensive, it

increased Young’s offense level by two rather than

three levels. The court’s finding that a defendant

qualified as a manager or supervisor of criminal activity

is a factual determination that we review for clear error.

E.g., United States v. Watts, 535 F.3d 650, 660 (7th Cir.),

cert. denied, 129 S. Ct. 475 (2008).

Young concedes that one can take “snippets” from the

record that support the district court’s finding but insists

that “the evidence, as a whole, does not establish a basis

for this enhancement[,] for the context does not demon-

strate exertion[ ] of control over others, as contemplated

by the [guideline].” Young Br. 19. She points out that in

order to qualify as a manager or supervisor, a defendant

must, at a minimum have “some real and direct influ-

ence” upon at least one other participant in the crime in

a way that furthers the criminal activity. See United States

v. Mankiewicz, 122 F.3d 399, 405 (7th Cir. 1997) (quoting

United States v. Mustread, 42 F.3d 1097, 1103 (7th Cir.

1994)). She emphasizes that this is not a case of “white

slavery” in which the spa’s workers were coerced into

providing sexual services to customers. Although Young

had administrative responsibilities that other workers

at the spa did not, she characterizes her role as that of a

bookkeeper who collected the spa’s proceeds and paid

No. 08-2357 9

its bills under the direction of the spa’s owner,

Thompson, and who had no meaningful influence over

the activities of any other employee. This was a small

operation in which each employee had her own duties,

Young argues, and her duties did not involve the

direction or control of the other workers.

Having reviewed the record, we are satisfied that the

evidence supports, although it may not compel, the

finding that Young was a manager or supervisor of the

spa’s criminal activity. One can readily infer from the

record that Young acted as the owner’s proxy in

overseeing the spa’s day-to-day affairs: she collected the

proceeds, paid the cook/housekeeper her daily wage, was

responsible for the ledger, and paid the bills. She

reported to Thompson when there were problems with

other employees, including, for example, an employee’s

failure to report for work (which resulted in Thompson

firing the absent worker). There was evidence that Young

hired employees, including Palmer, the cook/housekeeper.

There was also evidence (which although disputed, the

district court credited) that Young decided, upon the

arrival of a customer, which of her co-workers would

provide a massage to the customer. R. 244 at 17; R. 293

at 13. Young may not have controlled her co-workers in

the sense that she had the power to dictate their

actions, but such control is not the sine qua non of a

leadership role; one may still qualify as a manager or

supervisor if she orchestrates or coordinates the activities

of other participants in the crime. United States v. Martinez,

520 F.3d 749, 752 (7th Cir.), cert. denied, 129 S. Ct. 300 (2008);

see also United States v. Gonzalez-Mendoza, 584 F.3d 726, 728-

10 No. 08-2357

29 (7th Cir. 2009). The evidence that Young hired

workers, assigned them to customers, handled the spa’s

finances, and acted as the owner’s representative

supports the district court’s finding that she played a

more responsible role in the crime than did the other spa

employees. There was no clear error in the district

court’s determination that she qualified as a manager or

supervisor.

B. Pseudo-Count Enhancement for Commercial Sex Acts

Involving Multiple Victims

Young conspired to use the facilities of interstate com-

merce to facilitate prostitution. Her offense was thus one

involving commercial sex acts, i.e., those for which pay-

ment is rendered. See U.S.S.G. § 2G1.1, comment. (n.1), and

18 U.S.C. § 1591(e)(3). Where such an offense involves

more than one victim, section 2G1.1(d)(1) of the

Guidelines instructs the court to calculate the offense

level “as if the promoting of a commercial sex act . . . in

respect to each victim had been contained in a separate

count of conviction.” Pursuant to Application Note 5 of

the guideline, any person who is “transported,

persuaded, induced, enticed, or coerced to engage in . . . a

commercial sex act . . . is to be treated as a separate victim.”

Id., comment (n.5). The district court found that during

Young’s tenure at the spa, there were “at least four and

likely seven to eight” women other than Young who

provided sexual services to customers, R. 293 at 19, and

each of those women constituted a victim for purposes of

the Guideline, R. 293 at 19-20. The court also found that

No. 08-2357 11

Young, in her role as the spa’s manager, had effectively

“enticed” these women into performing commercial sex

acts by confining their income to the “tips” they received

for providing sexual massages. R. 293 at 21-22. The court

therefore calculated Young’s offense level as if she had

been convicted of one “pseudo count” of promoting a

commercial sex act in addition to the one actual count of

conviction. The fictitious second count resulted in a two-

level increase in Young’s offense level pursuant to

section 3D1.4. The district court’s findings that the spa’s

masseuses were victims and that Young was responsible

for enticing them into performing commercial sex acts

are factual in nature, and we review them for clear error.

See United States v. Julian, 427 F.3d 471, 488-89 (7th

Cir. 2005).

Young protests the enhancement, contending that in

the absence of evidence that she coerced the masseuses

into engaging in sexual activity or controlled their

method of payment, it was improper to increase her

offense level simply because the masseuses were given

a financial incentive to give sexual massages. Young

points out that Kim testified that she (Kim) kept not only

the tips they received for sexual massages, but also one-

half of the entrance fees charged to her customers. Conse-

quently, the tips for sexual gratification were not neces-

sarily the masseuses’ sole source of payment. Young

herself also testified that it was common for spas not to

pay masseuses a wage and instead compensate them

from the fees they collected from customers. She adds that

it was Thompson and not she who established the

manner and amount of payment for massages.

12 No. 08-2357

The district court did not clearly err in finding that

Young was responsible for enticing the spa’s masseuses

into performing sexual massages. That Young did not

coerce the masseuses is, as Young all but concedes, beside

the point, as the guideline expressly reaches those

who “entice” others into performing commercial sex acts

as well as those who persuade, induce or coerce others

into doing so. And the evidence supports the court’s

finding that the women were enticed to engage in

sexual massages. Even if the “tips” that the masseuses

kept were not the sole source of their compensation, they

nonetheless amounted to a substantial portion of that

compensation. And given that seventy-five percent or

more of the spa’s customers were seeking sexual gratifica-

tion, it is doubtful that a masseuse who refused to

provide that gratification would have lasted long at the

spa. This was enough to establish that the masseuses

were enticed into engaging in sexual activity for pay, and

thus to support the finding that the masseuses were

victims for purposes of the Guideline. Young’s role as a

manager or supervisor of the spa’s criminal activity in

turn supports the court’s finding that she was

responsible for the enticement. Granted, Young did not

set up the spa’s fee structure and method of com-

pensating the masseuses. But, as the individual who for

six months assigned masseuses to customers, collected

the spa’s proceeds, made sure that the spa’s business

was accurately documented in a ledger for Thompson,

and kept the spa running on a day-to-day basis, Young

played a significant role in perpetuating both the illicit

activity taking place at the spa and the means by which

No. 08-2357 13

the masseuses were compensated for that activity. The

district court could reasonably infer that Young herself

enticed the masseuses to engage in commercial sexual

activity.

C. Reasonableness of Young’s Sentence

In the wake of the Supreme Court’s watershed decision

in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005), a district court has an obligation to impose a

sentence that is reasonable in light of the sentencing

criteria set forth in 18 U.S.C. § 3553(a). See United States v.

Dean, 414 F.3d 725, 730-31 (7th Cir. 2005); see also Gall v.

United States, 552 U.S. 38, 49-50, 128 S. Ct. 586, 596-97

(2007). Although it is no longer bound by the Sentencing

Guidelines, the court still must consult the Guidelines

in arriving at a reasonable sentence, see Kimbrough v.

United States, 552 U.S. 85, 108, 128 S. Ct. 558, 574 (2007)

(“district courts must treat the Guidelines as ‘the

starting point and the initial benchmark’ ”) (quoting Gall,

552 U.S. at 49, 128 S. Ct. at 596), and when the

court selects a sentence that falls within the properly-

calculated Guidelines range, we shall presume that sen-

tence is reasonable. United States v. Mykytiuk, 415 F.3d 606,

608 (7th Cir. 2005); see Rita v. United States, 551 U.S. 338,

127 S. Ct. 2456 (2007) “But the defendant must be given

an opportunity to draw the judge’s attention to any

factor listed in section 3553(a) that might warrant a sen-

tence different from the guidelines sentence, for it is

possible for such a variant sentence to be reasonable and

thus within the sentencing judge’s discretion under the

14 No. 08-2357

new regime in which the guidelines, being advisory, can

be trumped by section 3553(a), which as we have

stressed is mandatory.” Dean, 414 F.3d at 730-31.

At oral argument, Young’s counsel asserted that Young

received “a pre-Booker sentence in a post-Booker world.”

Young’s premise is not that the district court mistakenly

treated the Guidelines as binding, but rather that the

court, in neglecting to explicitly address the mitigating

factors that her counsel had cited in support of a below-

Guidelines sentence, did not fully comply with its obliga-

tion to determine a reasonable sentence in view of

section 3553(a)’s broad sentencing criteria. See United

States v. Villegas-Miranda, 579 F.3d 798, 801-02 (7th Cir.

2009).

This would be true as to any principal arguments that

were “not so weak as to not merit discussion,” id. (quoting

United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.

2005)), or in other words, arguments that were “sub-

stantial,” United States v. Martinez, supra, 520 F.3d at 753.

But in addition to arguments that clearly lack merit, see,

e.g., United States v. Miranda, 505 F.3d 785, 792 (7th Cir.

2007) (quoting Cunningham, 429 F.3d at 678), a sentencing

judge may reject without discussion “stock arguments”

that are made as a matter of routine. Martinez, 520 F.3d

at 753. A number of Young’s arguments appear to fall

into the latter category: for example, that she is a

divorced mother of two, had no prior criminal history,

and was restricted to home and work prior to trial. See id.

More to the point, Young has not attempted to explain

which of her arguments, if any, had substantial merit

No. 08-2357 15

and why, or even to identify which of them were her

principal arguments. See Villegas-Martinez, 579 F.3d at 801

(sentencing court need only respond to defendant’s

principal arguments, not every “pithy” argument she

might raise). In fact, Young has not individually

addressed any of the mitigating factors she raised below;

she simply asserts that none of them was frivolous,

leaving it to us to sort through them all to determine

which might have sufficient merit to demand the

district court’s explicit attention. That is not our role. See

Mykytiuk, 415 F.3d at 608 (defendant can rebut presump-

tion of reasonableness attending within-Guidelines sen-

tence only by showing sentence is unreasonable when

measured against section 3553(a) factors). We add that

none of the factors she argued to the district court

strikes us as sufficiently meritorious on its face to have

demanded explicit comment by the court.

The district court complied with its obligations in

sentencing Young. The court referenced the section

3553(a) factors, see United States v. Williams, 425 F.3d 478,

480 (7th Cir. 2005) (judge need not make findings as to

each of statutory factors so long as record indicates it

gave them meaningful consideration), and indicated

both that it had considered the arguments advanced by

Young’s counsel and that it, had, in fact, been persuaded

to reduce the sentence from the top to the bottom of the

Guidelines range. The court articulated a rationale for

not imposing a sentence below the range, as Young had

asked, explaining that it viewed the Guidelines as “light”

with respect to Young’s offense and that Young had

received a number of breaks in the manner in which the

16 No. 08-2357

Guidelines had been applied.1 See United States v. Laufle,

433 F.3d 981, 987 (7th Cir. 2006) (“A concise statement of

the factors that caused the judge to arrive at a particular

sentence, consistent with section 3553(a), will normally

suffice.”); see also Rita, 551 U.S. at 356, 127 S. Ct. at 2468

(“The sentencing judge should set forth enough to

satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.”). The

Guidelines range was properly calculated, and the sen-

tence imposed fell within that range. As such, it is pre-

sumptively reasonable, and Young has not rebutted

that presumption.

III.

The district court properly determined Young’s offense

level, and although the court did not expressly address

the factors she cited in support of a below-Guidelines

sentence, Young has not shown which of those factors, if

any, was sufficiently meritorious to require explicit dis-

cussion by the court or to rebut the presumption of rea-

1

Those breaks included the district court’s decision to treat the

criminal activity that Young supervised or managed as in-

volving fewer than five participants and thus to impose a two-

level rather than a three-level enhancement for her ag-

gravating role in the offense, see U.S.S.G. § 3B1.1(b) and (c), and

the court’s decision to deem Young as having been convicted

of only one pseudo count despite the multiple victims

involved, see U.S.S.G. § 2G1.1(d)(1) & comment. (n.5).

No. 08-2357 17

sonableness that we attach to the within-Guidelines

sentence that the court imposed. We therefore A FFIRM

the sentence.

12-23-09