United States v. Jermayne Whyte
Opinion
The main issue presented by this appeal is whether the government may prove sex trafficking of a minor,
I. BACKGROUND
When A.E. was 16 years old, she ran away from her family in California. A.E. had been spending time with people her father considered "thugs," including a man named Marcus Weber. Weber, whom A.E. later described as a "dangerous guy" she *1323 could not refuse, coerced A.E. to board a flight to Florida. When A.E. left, she was on probation and could have been punished with up to 15 years of imprisonment for leaving California.
After A.E. arrived in Florida, she began working for an escort agency. The agency posted advertisements for A.E. on Backpage.com, a website that could be used to obtain prostitutes. A.E. began going on what she described as "dates" or engagements in which men paid to have sex with her. During this period, A.E. used several false identities.
Shortly after her arrival in Florida, A.E. received unprompted text messages from Jennifer Castro, an adult prostitute who also worked at strip clubs. Castro told A.E. that she "could put [A.E.] in a better situation." After texting with Castro for two days, A.E. agreed to meet her. When they met in person, Castro came with her partner, Jermayne Whyte, nicknamed "Turtle," and their baby. Whyte and Castro brought A.E. home with them. A.E. lived with Whyte and Castro in their townhouse for most of a two-month period. A.E. slept on the couch, and Whyte and Castro slept in the master bedroom. Whyte and Castro bought A.E. food and clothing. They also gave A.E. marijuana and smoked it with her.
For the first few days, A.E. enjoyed living with Whyte and Castro and performed no work. But then Whyte and Castro encouraged A.E. to work at a strip club. A.E. explained that she had no identification document, but Whyte and Castro obtained a false identification for her. The identification was in the name of "Jessica Berry," who was about 24 or 25 years old. A.E. used this false identification to work at multiple strip clubs. Whyte and Castro drove A.E. to the strip clubs to perform that work.
Whyte and Castro also began prostituting A.E. They both posted ads for A.E. on Backpage.com. They chose the content of the ads and set the price for A.E.'s services. Along with the online ads, Whyte and Castro told A.E. to pick up clients at the strip clubs. And they took her to a nearby Hard Rock Casino to look for clients.
Whyte and Castro managed A.E.'s prostitution. They had a "trick phone" to communicate with A.E.'s "tricks"-i.e., the men who were paying to have sex with her. Whyte pretended to be A.E. in text conversations with her clients because A.E. "didn't know how to talk to them." Whyte and Castro instructed A.E. on how to treat clients, told her to use condoms, and taught her how to identify undercover police officers. A.E. did not know how to do her makeup, so someone else had to do it for her. A.E. had no control over the money she made. Whyte would drive A.E. to her engagements, wait for her, and then collect the money. Castro also accompanied A.E. and was sometimes present in the same room as A.E. when she was having sex with a client. When she was working for Whyte and Castro, A.E. saw four to six clients a day.
After a few weeks of working for Whyte and Castro, they took a trip to Atlanta so that A.E. could work in more lucrative strip clubs there. Whyte drove A.E. in a rental car and arranged for A.E. to have sex with a client on their way. Whyte also had sex with A.E. on the trip. When he got tired, Whyte asked A.E. to drive, but she did not know how to drive and hit a traffic cone. Whyte later acknowledged that he needed to teach A.E. how to drive. Castro flew to Atlanta to meet Whyte and A.E., and the three of them stayed in a single hotel room. Whyte and Castro posted Backpage.com ads for A.E. and had her work at two strip clubs. But one strip club would not allow A.E. to work there because her appearance did not match the *1324 photograph for her identification and she "look[ed] young."
A.E. left Whyte and Castro a few times. After the Atlanta trip, A.E. left them when Whyte was arrested on an unrelated charge of providing a false identification. A.E. had several conversations with Whyte while he was in jail, which were recorded. Whyte encouraged A.E. to go back to Castro and called them a "family." Castro texted A.E. that she was "not here to play kiddie feelings games with [A.E.]" and rebuked A.E. for being "too scared to deal with problems like a grown person." While Whyte was in jail, Castro maintained the trick phone, and she continued to post A.E. on Backpage.com. Castro refused to return A.E.'s medication and belongings to her. After Whyte was released, A.E. returned to living with Whyte and Castro and working at strip clubs. At one point, A.E. placed a call to a human-trafficking rescue hotline but did not report Whyte and Castro.
Meanwhile, Agent Roy Van Brunt of the Federal Bureau of Investigation received a lead about a runaway minor working as a prostitute at a strip club. When A.E. was working at a strip club one night, the police took her into custody. A.E. first admitted but then denied her true identity. A.E. told the police about her Backpage.com ads under the name "Cali Rose" or "Cali Rosebud," which the police used to locate the account that posted the ads and the phone numbers associated with it. After several weeks of being uncooperative, A.E. admitted her identity to Agent Van Brunt and Detective Nicholas Masters of the Broward County Sheriff's Office, and she told them about Whyte and Castro's role in her prostitution. After A.E. began cooperating with the police, a California court held a hearing to revoke her probation, but the court found that A.E. had not violated her probation.
Based on A.E.'s interview, Detective Masters obtained a search warrant for Whyte and Castro's townhome. Although he knew A.E.'s criminal history, Detective Masters did not include it in his affidavit because he did not think it was relevant. When the police executed the warrant, they found several items that A.E. had described, including two duffel bags containing clothes A.E. had worn while stripping; a drug prescription for "Jessica Berry," the name on A.E.'s false identification; a rental car receipt for the Atlanta trip; and the trick phone.
The police also corroborated A.E.'s story by obtaining phone records that included A.E.'s text messages with Whyte and Castro. The police matched the trick phone with several Backpage.com ads posted for A.E. And the historical cell site data from the trick phone revealed that it had moved from Whyte and Castro's townhome to Atlanta and near several strip clubs, as A.E. had described. When the police interviewed Castro, she described A.E. as "very immature" and stated that she "had questions about her age from almost the first time she met her." Castro also "believed A.E. might be lying about how old she was."
In a superseding indictment, a grand jury indicted Whyte and Castro with conspiracy to commit sex trafficking of a minor,
Before trial, Whyte and Castro moved to suppress the evidence obtained pursuant to the search warrant. They argued that Detective Masters's affidavit supporting the warrant omitted A.E.'s criminal history, which affected the probable-cause determination. After conducting an evidentiary
*1325
hearing about the warrant,
see
Franks v. Delaware
,
The government proceeded to trial on the theory that Whyte and Castro were guilty of sex trafficking of a minor because they had a "reasonable opportunity to observe" A.E.,
see
The government presented testimony from A.E., her father, Detective Masters, Agent Van Brunt, and other police officers who investigated the crimes. The government also presented the recorded jailhouse phone calls between Whyte, Castro, and A.E. And the government presented the phone records and historical cell site data from the trick phone. Whyte and Castro presented a defense about A.E. looking and acting like an adult, her willingness to engage in prostitution, and her criminal history.
The government also presented evidence about A.E.'s travel from California to Florida and the possible probation consequences for her. A.E. testified that Weber coerced her to board the flight to Florida. And the government later elicited testimony that A.E. informed the California court in her probation hearing that she had not left voluntarily and that the court found A.E. had not violated her probation. Castro sought to cross-examine A.E. about whether she lied in her probation hearing about leaving California involuntarily. The government objected, and the district court sustained on relevance grounds. Castro later cross-examined A.E. about the possible "15-year prison sentence hanging over [her] head." And Castro asked A.E., "Isn't it true that the only reason you're here testifying is so that you don't get violated on your probation?"
After closing argument, the district court instructed the jury that it could find Whyte and Castro guilty of sex trafficking of a minor and conspiracy to commit sex trafficking of a minor if it found that the defendants had a "reasonable opportunity to observe" the minor victim A.E. For the conspiracy charge, the district court instructed that the second element of a conspiracy is "[t]hat the Defendant knew the unlawful purpose of the plan and willfully joined in it." It defined the term "willfully" as "mean[ing] that the act was committed voluntarily and purposely, with the intent to do something the law forbids; that is, with the bad purpose to disobey or disregard the law." For the sex trafficking charge, the district court instructed that "[i]t is a federal crime for anyone ... to recruit, entice, harbor, transport, provide, obtain or maintain by any means, a person, knowing or in reckless disregard of the *1326 fact that the person ... would be caused to engage in a commercial sex act." The court then listed facts that the jury must find, but that list did not include "that the person ... would be caused to engage in a commercial sex act" as an element. The jury found Whyte and Castro guilty of all charges.
A probation officer prepared presentence investigation reports for Whyte and Castro. The probation officer calculated Whyte's and Castro's base offense levels as 30.
See
United States Sentencing Guidelines Manual § 2G1.3(a)(2) (Nov. 2016). The probation officer then applied three two-level enhancements for unduly influencing a minor to engage in prohibited sexual conduct,
Whyte and Castro raised several objections to their guideline calculations. They objected to the enhancement for undue influence of a minor. Whyte and Castro argued that a two-point reduction for acceptance of responsibility was warranted because, although they went to trial, they contested only whether a "reasonable opportunity to observe" A.E. was sufficient for their convictions. Whyte and Castro objected to the enhancement for the commission of a commercial sex act as double counting because the base offense level already accounted for the commission of a commercial sex act. And Castro objected to the enhancement for use of a computer on the ground that application note 4 required her to use a computer to communicate directly with A.E. but that she had used a computer only to communicate with A.E.'s clients.
At their joint sentencing hearing, the district court denied the requested reductions for acceptance of responsibility. The district court explained that, although the reduction may be applied on "rare occasion[s]" when a defendant goes to trial, it could not apply to Whyte and Castro because they disputed their guilt and did not fully accept responsibility. The district court sustained Castro's objection to the enhancement for undue influence but applied it to Whyte. The district court denied Castro's objection to the use-of-a-computer enhancement under section 2G1.3(b)(3)(B) based on
United States v. Hill
,
After considering the statutory sentencing factors,
The district court sentenced Castro to 188 months of imprisonment after again considering the statutory sentencing factors. It reiterated that the failure of the government to prove that Castro knew A.E.'s age qualified as a mitigating circumstance. The district court explained that it had "imposed sentences on similar situations way over ten years in prison." It "weigh[ed] the aggravating and mitigating circumstances" in favor of "a sentence at the low end of the guideline range" and imposed the lowest sentence within that range.
II. STANDARDS OF REVIEW
Several standards of review govern this appeal. We review the legal interpretation of a criminal statute
de novo
,
United States v. Williams
,
III. DISCUSSION
We divide our discussion in five parts. First, we explain that section 1591 permitted the government to convict Whyte and Castro by proving that they had a reasonable opportunity to observe A.E. instead of by proving that they either knew or recklessly disregarded A.E.'s age. Second, we explain that the district court committed no plain error in its jury instructions. Third, we explain that the district court did not err when it denied Whyte and Castro's motion to suppress because they failed to establish that Detective Masters omitted A.E.'s criminal history deliberately or with a reckless disregard for its materiality. Fourth, we reject Castro's argument that the limitation on her cross-examination of A.E. violated her confrontation right. Fifth, we explain that the district court correctly calculated Whyte's *1328 and Castro's guideline ranges and imposed substantively reasonable sentences.
A. Section 1591 Permits the Government to Prove Only that Whyte and Castro had a "Reasonable Opportunity to Observe" A.E.
Whyte and Castro challenge their convictions for sex trafficking of a minor on the ground that the district court misinterpreted section 1591 as permitting the government to prove only that they had a "reasonable opportunity to observe" A.E. They contend that section 1591 requires proof that they either knew or recklessly regarded A.E.'s age. Whyte and Castro contend that this misinterpretation led to a deficient indictment, erroneous jury instructions, and the erroneous preclusion of their mistake-of-age defense. Castro also argues that a "reasonable opportunity to observe" standard is unconstitutionally vague. These arguments fail.
Section 1591(a)(1) defines the following offense: "Whoever knowingly ... recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person ...
knowing, or,... in reckless disregard of the fact ... 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 ...."
Whyte and Castro argue that the government must always prove either actual knowledge or reckless disregard of the victim's age, which it failed to charge and prove for them, but the plain language of subsection (c) forecloses that interpretation. Framed as what the government "need not prove," subsection (c) relieves the government of its burden under subsection (a)(1) to prove knowledge or reckless disregard of the victim's age so long as it proves that the defendant had a reasonable opportunity to observe the victim.
Whyte and Castro's interpretation violates the surplusage canon. It is a "cardinal rule that, if possible, effect shall be given to every clause and part of a statute."
RadLAX Gateway Hotel, LLC v. Amalgamated Bank
,
*1329
knowledge" required by subsection (a) of actual knowledge or reckless disregard. But that interpretation drains subsection (c) of all independent effect: If proof of a reasonable opportunity to observe the victim offers only a way of proving actual knowledge or reckless disregard of the victim's age, then no effect can be given to the phrase "the Government need not prove."
Whyte and Castro invoke the rule of lenity, which requires that persistent ambiguity in criminal statutes be resolved in favor of the accused, but that rule has no application when a statute is unambiguous.
United States v. Jeter
,
Whyte and Castro rely on dictum in our caselaw interpreting an earlier version of section 1591 that Congress has since abrogated. Before 2015, subsection (c) described evidence of a defendant's "reasonable opportunity to observe" a minor victim as a substitute for proof of what "the defendant knew" about the victim's age.
See
Our dictum in
Mozie
conflicted with an interpretation of subsection (c) by the Second Circuit.
See
Robinson
,
When Congress amended section 1591 in 2015, it adopted the interpretation by the Second Circuit in
Robinson
by adding reckless disregard to subsection (c).
See
Justice for Victims of Trafficking Act of 2015, Pub. L. 114-22, § 108(a)(3)(B),
Our recent decision in
United States v. Blake
,
Because section 1591 permitted the government to convict Whyte and Castro by proving that they had a reasonable opportunity to observe A.E., Whyte and Castro's other arguments based on their mistaken interpretation fail. The indictment and jury instructions omitted no essential element by including the element of a reasonable opportunity to observe A.E. instead of knowledge or reckless disregard of her age. And they were not entitled to a mistake-of-age defense or an instruction about it because, when the government proceeds on the theory that a defendant had a reasonable opportunity to observe the victim, his mistake about the victim's age is no defense.
See
United States v. Deverso
,
Whyte and Castro alternatively argue that section 1591 impermissibly imposes strict liability, but we disagree. Section 1591 "does not actually impose 'strict liability' because the statute, throughout its revisions, has retained a traditional scienter requirement" of knowledge that the victim "will be caused to engage in a commercial sex act."
Copeland
,
Castro argues that the "undefined and elusive concept" of a "reasonable opportunity to observe" is unconstitutionally vague, but our precedent forecloses this argument. The Supreme Court has ruled that a statute must afford "a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute."
Papachristou v. City of Jacksonville
,
Castro's argument about vagueness also fails as applied to the facts of her case. We have held that "five or six interactions," including the "considerable interaction" of a 20-minute erotic photo session, provided a defendant with a reasonable opportunity to observe the victim.
See
Blake
,
B. The Jury Instructions About a Commercial Sex Act and Willfulness Were Not Plainly Erroneous.
Castro argues that the jury instructions failed to explain the element of willfulness for her conspiracy charge and omitted an element for her sex trafficking charge. Because she did not raise these objections at trial, we review for plain error.
See
Felts
,
*1332
] a jury instruction under the plain error standard, we will reverse only in exceptional cases," which ordinarily requires a defendant "to establish that the challenged instruction was an incorrect statement of the law and that it was probably responsible for an incorrect verdict, leading to substantial injustice."
Montgomery v. Noga
,
The district court instructed the jury that the second element of a conspiracy is "[t]hat the Defendant knew the unlawful purpose of the plan and willfully joined in it." It also defined the term "willfully" as "mean[ing] that the act was committed voluntarily and purposely with the intent to do something the law forbids; that is, with the bad purpose to disobey or disregard the law." And it explained that "[w]hile a person must have acted with the intent to do something the law forbids before you can find that the person acted willfully, the person need not be aware of the specific law or rule that his or her conduct may be violating." These instructions mirror our pattern jury instructions,
see
11th Cir. Pattern Jury Instr. (Crim.) B9.1A (2016), and the Supreme Court's explanation of willfulness,
see
Bryan v. United States
,
Castro argues that the instruction should have included knowledge of the victim's age as an element of the conspiracy because she could not willfully agree to commit sex trafficking of a minor if she did not know A.E. was a minor, but we disagree. The Supreme Court has rejected a similar argument that a charge of "conspiracy to commit assault on a federal officer" requires knowledge that the victim was a federal officer.
See
United States v. Feola
,
Castro also argues that the instruction for sex trafficking of a minor omitted the element of a "commercial sex act." A district court must "instruct the jury on
all
the essential elements of the crime charged," including identifying those essential elements as such.
United States v. Herzog
,
*1333
In the light of the entirety of the instructions given, the omission of the element of a commercial sex-act from the numbered list did not constitute plain error. Immediately before the numbered list of elements, the instruction for the sex-trafficking count included that "[i]t is a federal crime for anyone ... to recruit, entice, harbor, transport, provide, obtain or maintain by any means, a person, knowing or in reckless disregard of the fact that the person ...
would be caused to engage in a commercial sex act
." A definition of a "commercial sex act" followed the numbered list. And the instruction for the conspiracy count included the element in its numbered list of facts that the jury must find. Taken as a whole, the instructions addressed the element of knowledge that A.E. would be caused to engage in a commercial sex act. And the district court provided the jury with a copy of the indictment-which included knowledge that A.E. would be caused to engage in a commercial sex act as an element of the sex trafficking of a minor charge-during deliberations.
See
United States v. Slaughter
,
C. The District Court Did Not Err in Denying the Motion to Suppress.
Whyte and Castro argue that the district court erred when it denied their motion to suppress because Detective Masters's affidavit supporting the search warrant omitted A.E.'s criminal history. An affidavit supporting a search warrant is presumed valid.
Franks
,
Whyte and Castro are not entitled to suppression because they failed to argue that the affiant, Detective Masters, omitted material facts deliberately or with a reckless disregard for the truth. Besides a barebones assertion that "law enforcement intentionally, or at least recklessly, omitted numerous material facts," Whyte and Castro provided no argument in their opening briefs that Detective Masters acted deliberately or with a reckless disregard when he omitted A.E.'s criminal history from his affidavit, so they have abandoned this contention.
Sapuppo v. Allstate Floridian Ins. Co.
,
In her reply brief, Castro suggests that she argued Detective Masters
*1334
acted deliberately because he knew A.E.'s criminal history and did not include that information since it did not seem relevant. But Castro misunderstands what she had to prove. For an affirmative misrepresentation in an affidavit, deliberateness refers to a "deliberate falsehood"-not any action done intentionally.
See
Franks
,
D. The Limitation on Castro's Cross-Examination of A.E. Did Not Violate Castro's Right of Confrontation.
The Sixth Amendment affords a criminal defendant a right to confront witnesses against him that includes the right of cross-examination, but "the defendant's right to cross-examine witnesses is not without limitation."
Jeri
,
Castro argues that she should have been able to cross-examine A.E. about whether she lied in her probation hearing to avoid imprisonment. On direct examination, A.E. testified that she traveled from California to Florida at the behest of Marcus Weber and that she had been found not in violation of her probation for leaving California. Castro sought to cross-examine A.E. about whether her statement at the hearing that she left California involuntarily was a lie. According to Castro, this testimony would have impeached A.E.'s credibility by establishing that A.E. cooperated with the government only to avoid a lengthy prison sentence for violating her probation. The district court prevented this line of cross-examination based on relevance.
Although the district court barred Castro from specifically asking A.E. whether she lied about how she got to Florida to avoid a probation violation, this lone limitation did not deny Castro "an opportunity for effective cross-examination," which is all that the Sixth Amendment guarantees.
See
Jeri
,
E. The District Court Did Not Err when It Sentenced Whyte and Castro.
Whyte and Castro raise two challenges to their sentences. First, they argue that the district court erroneously applied three enhancements and declined to apply a reduction in calculating their guideline ranges. Second, they argue that the district court imposed substantively unreasonable sentences. Both arguments fail.
1. The District Court Did Not Err when It Applied Three Enhancements and Declined to Apply a Reduction.
Whyte argues that he should have received a two-point reduction for acceptance of responsibility. To receive that reduction, a defendant must "clearly demonstrate[ ] acceptance of responsibility for his offense." U.S.S.G. § 3E1.1(a). "The reduction may be available, in a rare case, even when the defendant proceeds to trial,"
United States v. Spoerke
,
Whyte is not entitled to a reduction for acceptance of responsibility because he contested a factual element of guilt by arguing that he never had a "reasonable opportunity to observe" A.E. Whether a defendant had a "reasonable opportunity to observe" the victim depends on the facts of that particular defendant's interactions with that victim. By arguing that he had no reasonable opportunity to observe A.E. because she looked and acted like an adult, Whyte put the government to its burden of proof at trial on this issue. That is, Whyte never accepted responsibility for his conduct; to the contrary, he always contested that he was not responsible for sex trafficking of a minor because a reasonable person would observe A.E. and conclude that she was over 18. So the district court did not err when it denied an acceptance-of-responsibility reduction.
Whyte next argues that the district court erred when it applied an
*1336
undue-influence enhancement. The undue-influence enhancement applies to "a participant [who] otherwise unduly influenced a minor to engage in prohibited sexual conduct." U.S.S.G. § 2G1.3(b)(2)(B). We "closely consider the facts of the case to determine whether a participant's influence over the minor compromised the voluntariness of the minor's behavior."
Whyte failed to rebut the presumption that he unduly influenced A.E. because he abused his superior knowledge, influence, and resources to facilitate her prostitution. Whyte managed A.E.'s prostitution by posting Backpage.com ads and communicating with her clients on the trick phone. And Whyte used his resources to facilitate A.E.'s engagements. Whyte obtained a false identity for A.E. so that she could work at strip clubs, where he also instructed her to pick up clients. Whyte drove A.E. to her engagements and collected her money when she was done. And Whyte exerted influence over A.E.; when A.E. ran away, Whyte persuaded A.E. to return by playing on her emotions, calling them a "family."
Whyte contends that the undue-influence enhancement could not apply because A.E. had already worked as an escort when she met him, but we disagree. That a minor has engaged in previous acts of prostitution does not foreclose that a defendant may have unduly influenced her to engage in further acts of prostitution. The district court did not clearly err when it found that Whyte unduly influenced A.E. to engage in further acts of prohibited sexual conduct.
Whyte and Castro argue that the district court erred when it applied an enhancement for the use of a computer based on their use of smart-phones to communicate with A.E.'s clients. Because Whyte did not object to this enhancement, we review his claim for plain error.
Felts
,
Castro contends that, based on application note 4, the enhancement should not apply because she did not use a computer to communicate directly with A.E. or a person exercising custody or control over A.E., but her reliance on application note 4 is misplaced. Application note 4 provides that the enhancement "is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor."
This Court has held that application note 4 is not authoritative for an enhancement under section 2G1.3(b)(3)(B) of the Guidelines because it is "a plainly erroneous reading of th[e] guideline."
Hill
,
Castro urges us to disregard Hill . She contends that the Sentencing Commission is presumed to be aware of controlling precedent that affects the Guidelines and, despite Hill and the decisions of our sister circuits, application note 4 remains unchanged in the current Guidelines.
Castro's argument fails for two reasons. First, we cannot disregard
Hill
because we are bound by it under the prior-panel-precedent rule.
See
United States v. Steele
,
When we set aside application note 4 as
Hill
requires us to do, it is clear that Whyte and Castro used a computer to "entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct" with A.E. U.S.S.G. § 2G1.3(b)(3)(B). Both Whyte and Castro used a computer to solicit clients for A.E. when they posted Backpage.com ads for A.E.'s prostitution, which this Court has explained falls
*1338
squarely within the enhancement.
Hill
,
Castro argues that her enhancement for the commission of a sex act amounts to double counting, but precedent forecloses this argument. "Impermissible double counting occurs only when one part of the Guidelines is applied to 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."
Blake
,
2. The District Court Did Not Impose Substantively Unreasonable Sentences.
When a defendant challenges his sentence as substantively unreasonable, we review the steps that the district court took in making its sentencing decision "through the prism of abuse of discretion."
Irey
,
The district court did not abuse its discretion when it sentenced Whyte to 300 months of imprisonment. It conducted a thorough analysis of the statutory sentencing factors and weighed them reasonably. The court considered the circumstances of the offense,
The district court did not abuse its discretion when it sentenced Castro to 188 months of imprisonment. It again reasonably weighed the relevant sentencing factors. The district court took into account that the government did not prove that Castro knew A.E.'s age as a mitigating circumstance. It considered Castro's history and characteristics when it included the negative effect of her incarceration on her children as a mitigating circumstance. Castro argues that the district court should have also considered her history of physical infirmities, including panic attacks and seizures, but the court did not have to "specifically mention [every] ground[ ] for variance that [Castro] argued."
United States v. Scott
,
Despite their sentences near the low end of their guideline ranges, Whyte and Castro fault the district court for failing to account for the nature of the specific offense. According to them, their offenses are atypical of sex trafficking of a minor because they did not involve "a young woman being forced against her will to engage in commercial sex acts." They highlight that A.E. had already been a prostitute before they met her, and they merely "befriended" A.E. by inviting her to live with them.
The absence of force or threats is immaterial for their offenses. The government charged Whyte and Castro with sex trafficking of a minor under section 1591(b)(2), which does not require force. Had the government charged them under section 1591(b)(1), which requires force or threats of force, they would have been subject to a higher mandatory minimum sentence and base offense level,
see
U.S.S.G. § 2G1.3(a)(1). Nor does A.E.'s prior prostitution and criminal history make their case atypical. As Detective Masters testified, a victim of sex trafficking often has a criminal history, and a "victim[ ] with baggage is par for the course" in these cases.
See also
Blake
,
IV. CONCLUSION
We AFFIRM the convictions and sentences of Whyte and Castro.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellee, v. Jermayne WHYTE, A.K.A. Turtle, Jennifer Castro, Defendants - Appellants.
- Cited By
- 46 cases
- Status
- Published