United States Court of Appeals For the First Circuit

No. 19-1813

UNITED STATES OF AMERICA,

Appellee,

v.

VINCENT GRAHAM, a/k/a Shawn, a/k/a MAC,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Thompson, Kayatta, Barron Circuit Judges.

Robert Herrick for appellant. Julia M. Lipez, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

September 24, 2020 KAYATTA, Circuit Judge. After an investigation revealed

that he had coerced a woman to engage in prostitution, defendant

Vincent Graham pled guilty to federal charges of sex trafficking,

drug trafficking, and interstate transportation of a person for

prostitution in violation of the Mann Act. At sentencing, the

district court determined that Graham's victim was a "vulnerable

victim" for purposes of applying a two-level enhancement under

section 3A1.1(b)(1) of the United States Sentencing Guidelines.

The district court sentenced Graham to 320 months on the sex and

drug trafficking counts and to concurrent 120-month sentences on

the Mann Act counts. Graham now challenges the district court's

application of the vulnerable-victim enhancement. For the

following reasons, we reject the appeal and affirm Graham's

sentence.

I.

Because this appeal follows a guilty plea, we draw the

relevant facts from the change-of-plea colloquy, the revised

pre-sentence investigation report, and the sentencing hearing

transcript. See United States v. Zapata-Vázquez,

(1st Cir. 2015).

Graham met J.R. in Biddeford, Maine, during the summer

of 2015. J.R. was addicted to heroin and engaged in prostitution

to support her addiction at the time. At their first meeting in

July 2015, Graham provided J.R. crack cocaine in exchange for a

- 2 - sexual favor and sold her heroin. Over the next month, Graham

verbally, emotionally, and physically abused J.R., directed her to

post commercial sex advertisements online, and took her from Maine

to Lowell, Massachusetts, where he coerced her to engage in

prostitution.

Graham retained nearly all of J.R.'s earnings from the

prostitution. In exchange, he supplied her with enough heroin to

keep her from suffering withdrawal symptoms. Graham also paid for

minutes on a cell phone on which clients would contact J.R., as

well as for some of the hotel rooms where J.R. would meet

clients. Graham threatened to withhold heroin from J.R. if she

did not continue to engage in prostitution, threatened to kill her

if she left, and severely beat her. When J.R. asked Graham how

she would be able to continue with prostitution with visible

injuries, Graham replied that clients would "pay more" out of

sympathy for her. After Graham assaulted her a second time, J.R.

managed to escape from him with the help of family and friends.

Several months later, in December 2015, Graham saw J.R.

again and gave her heroin and crack cocaine. He then took her and

another adult woman to New Hampshire and Massachusetts for purposes

of prostitution. J.R. continued to engage in prostitution at

Graham's direction and for his profit until December 22, 2015,

when Graham seriously assaulted her a third time. With the help

of a friend, J.R. left after this assault and checked into the

- 3 - Southern Maine Medical Center the next day. At the medical center,

she reported living with a man who "beat her badly" and for whom

she worked in prostitution. She described being hit in the face

and experiencing significant pain. She further stated that she

would "rather die than keep[] going back to that man," and that

"[h]e's either going to kill me or I am going to kill myself."

Graham was charged with two counts of sex trafficking an

adult by force, fraud, and coercion, in violation of

(a)(1), (b)(1), 1594(a); two counts of distributing heroin

and crack cocaine, in violation of

(a)(1),

(b)(1)(c); and two counts of transporting a person interstate with

intent that the person engage in prostitution, or aiding or

abetting such transportation, in violation of the Mann Act,

(a), 2. In January 2019, Graham pled guilty to all

six counts.

One sex-trafficking count covered the trafficking in the

summer of 2015. The second count covered the trafficking in

December 2015. For purposes of calculating the Guidelines

sentencing range, the district court treated the counts

separately, rather than grouping them. For each count, the

probation office and the government recommended that the court

apply a two-level enhancement under section 3A1.1(b)(1) of the

Guidelines, which applies "[i]f the defendant knew or should have

known that a victim of the offense was a vulnerable victim." The

- 4 - probation office and the government also recommended that the court

apply the vulnerable-victim enhancement to the Mann Act charge

arising out of Graham's interstate transportation of J.R. in

December 2015.1 Graham objected, contending that J.R. was not

"unusually vulnerable" as specified in the Application Note to

section 3A1.1(b)(1).

The district court opted to apply the enhancement only

to the sex-trafficking charges arising out of Graham's conduct in

December 2015.2 The court reasoned that had Graham's relationship

with J.R. ended in July 2015, it "would find it difficult to come

to the conclusion that [J.R.] was a vulnerable victim under the

standard." However, the court concluded that by December 2015,

J.R. was unusually vulnerable for several reasons. First, because

Graham "had severely beaten [J.R.] on two occasions," and J.R. had

"continued to work for him for a period of time even after the

beatings," Graham "knew that [J.R.] was susceptible as a battered

woman." Second, because Graham had emotionally abused J.R. in the

summer of 2015, Graham knew that "he could use emotional

1 Only one of the Mann Act counts pertained to J.R. 2 The record is not clear as to whether the district court applied the enhancement to the December 2015 Mann Act count involving J.R. However, because the Guidelines calculation was keyed to the count with the highest offense level, whether or not the district court applied the enhancement to the Mann Act charge did not alter the total offense level. More importantly, both parties presume -- and so shall we -- that any ruling on applicability of the enhancement to the December sex-trafficking count would apply equally to the Mann Act charge.

- 5 - techniques" to control her. And third, Graham "knew [J.R.] was

susceptible as a drug addict because he had fed her drugs and he

used drugs as a means of controlling her."

The vulnerable-victim enhancement raised the offense

level on the trafficking count covering the December 2015 time

period, generating a total offense level of 41 and a Guidelines

sentencing range of 360 months to life. The district court then

weighed the sentencing factors set forth in 18 U.S.C § 3553(a),

emphasizing that Graham had exploited J.R.'s vulnerability and

could do the same to other women in the future. Ultimately, the

district court imposed a sentence of 320 months of incarceration

on the sex-trafficking and drug counts, and a concurrent sentence

of 120 months on the Mann Act counts. Graham appeals.

II.

"We review sentencing decisions for abuse of discretion,

examining findings of fact for clear error and interpretations of

the sentencing guidelines de novo." United States v.

Martínez-Mercado,

(1st Cir. 2019).

In challenging his sentence, Graham argues that the

district court should not have applied the vulnerable-victim

enhancement because J.R.'s "vulnerability was . . . typical for

the offense conduct." But we need not decide that issue. Graham

concedes that the district court's application of the vulnerable-

victim enhancement did not affect his Guidelines sentencing

- 6 - range. Where, as here, the Guidelines sentencing range would have

been the same regardless of whether the district court's Guidelines

calculations were correct, we have generally found any potential

error harmless. See, e.g., United States v. Romero,

(1st Cir. 2018); United States v. Ponzo,

(1st Cir. 2017); United States v. Battle,

(1st

Cir. 2011) (collecting authorities).

Of course, an appellate court may only deem such an error

harmless "if, after reviewing the entire record, it is sure that

the error did not affect the sentence imposed." United States v.

Alphas,

(1st Cir. 2015). "In other words,

resentencing is required if the error either affected or arguably

affected the sentence."

Thus, on occasion we have reviewed

a record to make sure that an allegedly erroneous application of

the Guidelines did not influence the sentencing judge, even where

the Guidelines sentencing range would have remained unchanged in

any event. See United States v. Goergen,

(1st Cir.

2012). In conducting such a review, we seek to distinguish between

a judge's reliance on facts in selecting an appropriate sentence

and a judge's reliance on the significance that the Guidelines

appear to assign to those facts in calculating, for example, the

total offense level or criminal history category. See

Here, Graham asserts that the district court's

application of the vulnerable-victim enhancement "went to the

- 7 - heart" of its sentencing rationale and therefore was not harmless

error. But the record tells a different story. While the district

court based its sentence in part on the vulnerability of victims

that Graham had harmed in the past and could harm in the future,

context reveals that the district court was referring to the fact

that J.R. and others were vulnerable in the ordinary sense of the

word -- not to its legal determination that J.R. was "unusually

vulnerable" under the Guidelines. This distinction is sensible,

as Graham himself concedes by arguing that the ordinary victim of

these crimes is quite vulnerable to the predations of men like

him.

Further, although the district court relied on the

Guidelines sentencing range of 360 months to life in determining

Graham's sentence, it did not concentrate on the total offense

level or on the application of any particular enhancement when

explaining the sentence. Indeed, in a colloquy with the probation

officer, the district court confirmed that the Guidelines

sentencing range would remain the same regardless of whether the

total offense level was 39 or 41. See Goergen,

(citing a similar colloquy as evidence that "the judge focused on

the [Guidelines] sentence recommendation and not the raw guideline

number underpinning it" and concluding that the district court's

alleged misapplication of the Guidelines was harmless).

- 8 - Because the record does not reflect that Graham's

sentence was even arguably affected by the district court's

conclusion that the two-level enhancement for vulnerable victims

was warranted under the Guidelines, we hold that any alleged error

in the application of that enhancement would have been harmless.

III.

For the foregoing reasons, we affirm the sentence.

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