United States v. Maurice Smith

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-50549

Plaintiff-Appellee,

D.C. No.

v. 3:11-cr-00471-

BEN-1

MAURICE LEROME SMITH ,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Submitted February 7, 2013*

Pasadena, California

Filed June 26, 2013

Before: Consuelo M. Callahan, Sandra S. Ikuta,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Ikuta

*

The panel unanimously concludes that this case is suitable for decision

without oral argument. Fed. R. App. P. 34(a)(2).

2 UNITED STATES V . SMITH

SUMMARY**

Criminal Law

The panel affirmed a sentence imposed in connection with

a conviction for sex trafficking of children by force, fraud, or

coercion under 18 U.S.C. § 1591(a)(1) and (b)(1).

The panel rejected the defendant’s contention that an

enhancement for exerting undue influence on a minor under

U.S.S.G. § 2G1.3(b)(2)(B) was impermissible double-

counting, where the district court calculated a base offense

level under U.S.S.G. § 2G3.1(a)(1) for the defendant’s

violation of § 1591(b)(1), which has an element that the

defendant used “force, fraud, or coercion.”

The panel also rejected the defendant’s challenge to the

district court’s imposition of an enhancement for an

organizing role under U.S.S.G. § 3B1.1(c). The panel

reasoned that a woman who knowingly abetted the

defendant’s child sex trafficking offense qualified as a

“participant” under § 3B1.1, and the defendant was therefore

responsible for “organizing” her for the purpose of carrying

out that criminal act.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V . SMITH 3

COUNSEL

John Lanahan, San Diego, California, for Defendant-

Appellant.

Laura E. Duffy, United States Attorney; Bruce R. Castetter

and Alessandra P. Serano, Assistant United States Attorneys,

San Diego, California, for Plaintiff-Appellee.

OPINION

IKUTA, Circuit Judge:

Maurice Lerome Smith appeals several sentencing

enhancements that he received in connection with his

conviction for sex trafficking of children by force, fraud, or

coercion under 18 U.S.C. § 1591(a) and (b)(1). We affirm.

I

Smith was the owner of a San Diego-area window

washing company. But for many years, he had also been

involved in a much darker business: running a prostitution

ring. In October 2009, a 17-year-old girl named M.S.

contacted Smith by email, looking for a job. M.S. was

homeless and living in a tent behind a motorcycle junkyard

where she worked. M.S. knew Smith owned a window

washing company, but suspected that he was also involved in

some kind of “hustle,” such as selling drugs or fake purses.

M.S. wanted to participate in Smith’s hustle, and after

meeting Smith for coffee several times, began working for his

window washing company. M.S. told Smith she was 17

because he needed to know her age to get a work permit.

4 UNITED STATES V . SMITH

Several months later, in January 2010, M.S. moved in

with Smith and began having sexual relations with him.

Shortly thereafter, Smith brought a woman named Michelle

back to the house, who asked about M.S.’s age, pointedly

commenting on how young she looked. In reaction to

Michelle’s question, Smith punched Michelle in the face,

knocking her unconscious. M.S. then learned that Smith was

a pimp. Smith told M.S., “Bitch, I own you,” and

immediately forced her to work as a prostitute in his ring.

Smith had Michelle train and accompany M.S. on her

initial assignments to San Diego hotels, telling M.S. that

Michelle’s “got this, she’ll show you, she’s been doing it a

really long time.” Michelle subsequently accompanied M.S.

to hotels and posted some internet ads for her. Smith had

several other women working as prostitutes for him at that

time, but Michelle was his “bottom bitch,” defined by a

government expert as the pimp’s most trusted prostitute,

responsible for recruiting, collecting money, and possibly

disciplining other prostitutes.

Smith regularly beat and threatened M.S. from February

2010 onward, and M.S. tried to leave him five or six times.

Whenever M.S. tried to leave, Smith’s tactics varied between

cajoling her to stay, using statements like “no, baby, I love

you, don’t leave, you don’t need to leave, we can work this

out, it’s not that big of a deal,” to threatening her, using

statements like “bitch, you ain’t going nowhere.” If M.S.

pushed the issue, “there were physical altercations.”

Although Smith did let M.S. go in July 2010, the reprieve was

short-lived. In September 2010, Smith saw M.S. walking on

the street and demanded that she get into his car or she would

be “in pieces in the trunk.” Shortly after Smith forced M.S.

to resume working as a prostitute for him, however, M.S.

UNITED STATES V . SMITH 5

started a noisy dispute with a client in hopes that he would

call the police. The client did so, and once the police arrived,

M.S. told them she had been forced to work for Smith.

After his arrest, indictment and trial, Smith was convicted

by a jury of sex trafficking of children by force, fraud, or

coercion, in violation of 18 U.S.C. § 1591(a) and (b)(1).1 In

answering a special interrogatory on the verdict form, the jury

found that Smith “knew that force, fraud, or coercion would

be used to cause the person to engage in a commercial sex

act,” and that he “knew, or was in reckless disregard, that a

person who had not attained the age of 18 years would be

caused to engage in a commercial sex act.”2

1

18 U.S.C. § 1591(a) provides that “[w]hoever knowingly – (1) in or

affecting interstate commerce . . . recruits, entices, harbors, transports,

provides, obtains, or maintains by any means a person; or (2) benefits,

financially or by receiving anything of value, from participation in a

venture which has engaged in an act described in violation of paragraph

(1), knowing, or in reckless disregard of the fact, that means of force,

threats of force, fraud, coercion . . . or any combination of such means will

be used to cause the person to engage in a commercial sex act, or that the

person has not attained the age of 18 years and will be caused to engage

in a commercial sex act, shall be punished as provided in subsection (b).”

18 U .S.C. § 1591(b) provides that “[t]he punishment for an offense

under subsection (a) is – (1) if the offense was effected by means of force,

threats of force, fraud, or coercion . . . or by any combination of such

means . . . by a fine under this title and imprisonment for any term of years

not less than 15 or for life; or (2) if the offense was not so effected, and

the person recruited, enticed, harbored, transported, provided, or obtained

had attained the age of 14 years but had not attained the age of 18 years

at the time of such offense, by a fine under this title and imprisonment for

not less than 10 years or for life.”

2

Smith was also charged and convicted for being a felon in possession

of a firearm, which is not relevant to this appeal.

6 UNITED STATES V . SMITH

The pre-sentence report identified Smith’s base offense

level as 34, as prescribed by § 2G1.3(a)(1) of the Sentencing

Guidelines for violations of 18 U.S.C. § 1591(b)(1).3 It also

recommended a two-level enhancement under U.S.S.G.

§ 2G1.3(b)(2)(B) for exerting undue influence on a minor,

and recommended a two-level enhancement under U.S.S.G.

§ 3B1.1(c) for an organizing role. Smith contested both

proposed sentencing enhancements, arguing that the

§ 2G1.3(b)(2)(B) enhancement was duplicative of the

elements of his conviction, and that there was no basis for the

§ 3B1.1(c) enhancement because he did not supervise or

organize anyone but M.S. The district court rejected Smith’s

objections, stating that “[t]here is no question that you used

undue influence. I heard the victim testify. And there is no

question about your role in this offense. It is pretty obvious

that, sir, you have been involved in this activity for a long,

long time.” The court sentenced Smith to 360 months’

imprisonment, followed by five years’ supervised release.

Smith timely appealed.

II

In determining whether the district court committed

procedural error, we review the district court’s interpretation

of the Sentencing Guidelines de novo and its factual findings

for clear error. See United States v. Swank, 676 F.3d 919,

921 (9th Cir. 2012).4

3

U.S.S.G. § 2G1.3(a)(1) provides for a base offense level of 34 “if the

defendant was convicted under 18 U.S.C. § 1591(b)(1).”

4

There is “an intracircuit conflict as to whether the standard of review

for application of the Guidelines to the facts is de novo or abuse of

UNITED STATES V . SMITH 7

A

We begin with Smith’s challenge to the enhancement for

undue influence under § 2G1.3(b)(2)(B). This section

provides for a two-level upward adjustment if a participant

“unduly influenced a minor to engage in prohibited sexual

conduct.” Id. Smith argues that this two-level increase for

undue influence under § 2G1.3(b)(2)(B) was impermissible

double-counting because the court calculated a base offense

level of 34 under § 2G1.3(a)(1) for his violation of

§ 1591(b)(1), which has as an element that the defendant used

“force, fraud, or coercion.” Because a person using “force,

fraud, or coercion” against a minor would necessarily have

“unduly influenced” the minor, Smith asserts, the

§ 2G1.3(b)(2)(B) enhancement impermissibly punished him

for conduct already included in the base offense level.

As a general rule, it is appropriate for a court to consider

all applicable Guidelines provisions in calculating the

guidelines range for an offense. In particular, the Sentencing

Guidelines contemplate that courts will apply all applicable

specific offense characteristics to enhance the base offense

level. See § 1B1.1(a)(2); see also United States v. Williams,

693 F.3d 1067, 1074 (9th Cir. 2012). Indeed, the Guidelines

instructions direct a court to apply provisions even from

different chapters of the Guidelines Manual in calculating the

points applicable to a single offense, because “[a]bsent an

instruction to the contrary, enhancements under Chapter Two,

adjustments under Chapter Three, and determinations under

Chapter Four are to be applied cumulatively,” and “may be

triggered by the same conduct.” § 1B1.1 cmt. 4(B).

discretion,” see Swank, 676 F.3d at 921–22, but this standard of review is

not at issue here.

8 UNITED STATES V . SMITH

In accord with these instructions, we have long held that

“the Sentencing Commission understands double counting

and ‘expressly forbids it where it is not intended.’” United

States v. Rosas, 615 F.3d 1058, 1065 (9th Cir. 2010) (quoting

United States v. Reese, 2 F.3d 870, 894 (9th Cir. 1993)); see

also United States v. Vizcarra, 668 F.3d 516, 518 (7th Cir.

2012) (under § 1B1.1 cmt. 4(B), double counting is the

“default rule”). As the Guidelines Manual demonstrates, the

Commission has in fact done this. Within any offense

guideline, for example, if a single specific offense

characteristic subsection lists alternative adjustments, district

courts are to pick “only the one that best describes the

conduct.” § 1B1.1 cmt. 4(B). The Guidelines Manual also

spells out numerous instances in which a particular provision

should not be applied to the same conduct as another

provision. See Vizcarra, 668 F.3d at 521.

We have also inferred that the Commission would not

intend courts to apply a Guidelines provision that would

“increase a defendant’s punishment on account of a kind of

harm that has already been fully accounted for by application

of another part of the Guidelines.” United States v. Holt,

510 F.3d 1007, 1011 (9th Cir. 2007). However, “when each

invocation of the behavior serves a unique purpose under the

Guidelines,” we conclude that the Commission “authorized

and intended” the cumulative application of both provisions.

Id.; see, e.g., United States v. Stoterau, 524 F.3d 988, 1001

(9th Cir. 2008) (applying two enhancements to same conduct

permissible because they account for “different aspect of the

harms” caused by the defendant’s conduct); United States v.

Thornton, 511 F.3d 1221, 1228 (9th Cir. 2008) (applying two

enhancements to same conduct permissible because each

“stemmed from separate concerns”).

UNITED STATES V . SMITH 9

We have routinely concluded that two Guidelines

provisions serve unique purposes when applied

cumulatively.5 In United States v. Wright, for instance, we

considered whether it was permissible to apply both an

adjustment for a vulnerable victim under 12 years old and an

enhancement for the same victim’s extreme youth and small

physical size. 373 F.3d 935, 942–43 (9th Cir. 2004).

Because the enhancement for the victim’s extreme youth and

small physical size addressed characteristics such as an

inability to communicate, an inability to walk, and increased

pain upon sexual penetration that “correlate with age, but are

not necessarily related to age,” we concluded that the two

provisions served unique purposes, and therefore both could

be applied to a defendant whose victim was his 11-month old

son. Id. at 943; see also Holt, 510 F.3d at 1011 (citing

Wright, 373 F.3d at 943–44). Similarly, in Williams, we

considered whether a base offense level that deals with

“offenses of extortion by force, threat of force, or serious

damage” was duplicative of an enhancement for a crime that

“involved an express or implied threat of death, bodily injury,

or kidnapping.” 693 F.3d at 1074. Because it was possible

to engage in a crime involving force, such as a crime resulting

in damage to property, without being subject to the

enhancement, we held that applying both provisions was

5

See, e.g., Williams, 693 F.3d at 1074; United States v. Lynn, 636 F.3d

1127, 1138 (9th Cir. 2011); United States v. Lindsey, 634 F.3d 541, 556

(9th Cir. 2011), cert. denied, 131 S. Ct. 2475, (2011); United States v.

Albritton, 622 F.3d 1104, 1108 n.4 (9th Cir. 2010); United States v.

Gallegos, 613 F.3d 1211, 1216 (9th Cir. 2010); United States v. Laurienti,

611 F.3d 530, 554 (9th Cir. 2010); United States v. Pham, 545 F.3d 712,

718 (9th Cir. 2008); Stoterau, 524 F.3d at 1001; Holt, 510 F.3d at 1011;

Thornton, 511 F.3d at 1228; United States v. Cabaccang, 481 F.3d 1176,

1186 (9th Cir. 2007); United States v. Wright, 373 F.3d 935, 944 (9th Cir.

2004).

10 UNITED STATES V . SMITH

permissible. Id.; see also United States v. Laurienti, 611 F.3d

530, 555 (9th Cir. 2010) (because base offense level did not

“necessarily include” the conduct for which defendant

received an enhancement, there was no impermissible double

counting). As these cases illustrate, we may infer that two

provisions do not serve unique purposes under the

Guidelines, and that the Commission did not intend them to

be applied cumulatively, only when the provisions are co-

extensive or one provision entirely subsumes the other.

This precedent squarely forecloses Smith’s claim that the

district court engaged in impermissible double counting.

Because having “undue influence” on a victim under

§ 2G1.3(b)(2)(B) may involve acts that do not constitute

“force, fraud, or coercion” encompassed in § 2G1.3(a)(1), the

two provisions serve unique purposes under the Guidelines

and may both be applied to the same conduct. Here, the

district court could reasonably determine that Smith “unduly

influenced a minor to engage in prohibited sexual conduct,”

§ 2G1.3(b)(2), by preying on M.S.’s vulnerability. Smith

took steps aimed at making M.S. dependent on him: knowing

she was homeless and lacking family support or financial

resources, he invited her to move in with him, gave her a job,

and began a sexual relationship with her. These predatory

acts compromised the voluntariness of her ability to resist

Smith’s demands that she work as a prostitute for him. See

United States v. Brooks, 610 F.3d 1186, 1199 (9th Cir. 2010);

see also § 2G1.3 cmt. 3(B) (“Undue influence” is defined as

activity that “compromise[s] the voluntariness of the minor’s

behavior”). Yet, these acts do not amount to “force” or

UNITED STATES V . SMITH 11

“fraud.”6 See Webster’s Third New International Dictionary

887, 904 (2002) (defining “force” as “violence or such threat

or display of physical aggression toward a person as

reasonably inspires fear of pain, bodily harm, or death,” and

defining “fraud” as “an instance or an act of trickery or deceit

esp[ecially] when involving misrepresentation.”). Nor do

such acts amount to “coercion” as defined in § 1591. See

18 U.S.C. § 1591(e)(2) (defining “coercion” to mean “(A)

threats of serious harm to or physical restraint against any

person; (B) any scheme, plan, or pattern intended to cause a

person to believe that failure to perform an act would result

in serious harm to or physical restraint against any person; or

(C) the abuse or threatened abuse of law or the legal

process”).

Accordingly, we conclude that the district court did not

err in applying a two-point enhancement for “undue

influence” under § 2G1.3(b)(2) when calculating Smith’s

guidelines range.

B

We now turn to Smith’s claim that the district court erred

in imposing an enhancement under § 3B1.1(c). Under

§ 3B1.1(c), a two-level upward adjustment is warranted if the

defendant is an “organizer, leader, manager, or supervisor in

any criminal activity.” The notes to § 3B1.1(c) provide that

a defendant must have overseen “one or more other

participants” to qualify for the upward adjustment, see

§ 3B1.1 cmt. 2, and define “participant” as “a person who is

6

Because § 1591 does not define “force” and “fraud,” we rely on those

terms’ ordinary dictionary meaning. In re Roman Catholic Archbishop of

Portland in Oregon, 661 F.3d 417, 432 (9th Cir. 2011).

12 UNITED STATES V . SMITH

criminally responsible for the commission of the offense, but

need not have been convicted.” Id. Smith argues that

imposing this enhancement was improper because there were

no participants in the particular criminal activity at issue, sex

trafficking of children. According to Smith, M.S. could not

be a participant, because his conviction was based on the

government’s theory that M.S. was the sole victim of the

underlying § 1591 offense, and a victim cannot also be a

participant. Smith also contends that any participant would

have to be a minor, given the nature of the underlying

offense.

We have held that “[a] court may impose this [§ 3B1.1(c)]

enhancement if there is evidence that the defendant exercised

some control over others involved in the commission of the

offense or was responsible for organizing others for the

purpose of carrying out the crime.” United States v. Whitney,

673 F.3d 965, 975 (9th Cir. 2012) (internal quotation marks

omitted). Any person who knowingly abets the defendant’s

conduct qualifies as a “participant.” See United States v.

Cyphers, 130 F.3d 1361, 1363 (9th Cir. 1997); see also

United States v. Bisong, 645 F.3d 384, 397–98 (D.C. Cir.

2011).

There was ample evidence before the district court that

Michelle knowingly abetted Smith’s § 1591 offense. It is

clear that Smith assigned Michelle, his “bottom bitch,” to

groom M.S. for her prostitution responsibilities, and that

Michelle undertook a number of steps in doing so. Under

Cyphers, it is immaterial that Michelle did not herself commit

the same underlying offense as Smith, so long as she was a

knowing accessory to his crime. 130 F.3d at 1363–64. Nor

was it necessary for the government to prove that Michelle

was also coerced by Smith, so long as she “knew and

UNITED STATES V . SMITH 13

participated in the [illegal] practices at the direction of the

defendant,” id. at 1363, which was easily established by

M.S.’s testimony. Because Michelle knowingly abetted

Smith’s child sex trafficking offense, she qualified as a

“participant” under § 3B1.1, and therefore Smith was

“responsible for organizing [Michelle] for the purpose of

carrying out” that criminal act. Whitney, 673 F.3d at 975.

Accordingly, the district court did not err in imposing the

two-level adjustment under § 3B1.1(c).7

AFFIRMED.

7

W e also reject Smith’s argument that the district court erred in refusing

to hold an evidentiary hearing to resolve Smith’s challenges to M.S.’s

testimony included in the pre-sentence report. The district court reviewed

and acknowledged these factual objections during the sentencing hearing,

and clearly rejected them by ruling that M.S.’s testimony was “truthful

and honest,” thus fulfilling its obligations under Federal Rule of Criminal

Procedure 32(i)(3)(B). Likewise, the district court complied with Rule

32(i)(3)(B) by ruling that the challenged statements of one of Smith’s

prostitutes who spoke at the sentencing hearing but not under oath would

have no effect on his sentencing decision.