United States v. Shamsud-Din
United States v. Shamsud-Din
Opinion of the Court
ORDER
Erik Shamsud-Din challenges the 180-month sentence he received after he transported girls, including at least one minor, in interstate commerce for the purpose of prostitution. We find no clear error in the imposition of a vulnerable victim enhancement because Shamsud-Din knowingly preyed on a victim’s fear of a man who had been harming her. We also find any error in imposing a “use of a computer” enhancement based on Shamsud-Din’s use of a cell phone to be harmless, as the district court made very clear that it would have imposed the same sentence regardless of whether the enhancement was proper. We affirm Shamsud-Din’s sentence.
I. BACKGROUND
At the age of fifteen, Victim A ran away from a foster home in Minnesota and met a man whom the government calls “Individual A.” He told Victim A he would be her boyfriend and would take care of her, and he bought her a bus ticket to California. But upon her arrival 'in California, Individual A required Victim A to work as a prostitute for him. With no money and no other options, Victim A did so and gave him all the money she made. Individual A beat her multiple times while she worked for him.
In December 2006, while at an appointment at a male customer’s house, Victim A explained her circumstances to her customer, and he drove her to a hotel a few cities away. There, Victim A met Erik Shamsud-Din, the defendant. She told him that she had just escaped from a pimp who had been beating her up. She also told Shamsud-Din she was sixteen years old. After she explained her circumstances, Shamsud-Din offered that Victim A could begin working as a prostitute for him instead of for Individual A. Relieved because she thought Shamsud-Din could protect her from Individual A, Victim A gave Shamsud-Din the rest of the money she had with her and began working for him that evening.
Shamsud-Din pled guilty to two counts of transporting Victim B in interstate commerce with the intent that she engage in prostitution, in violation of 18 U.S.C. § 2421. He stipulated in the plea agreement to the additional offense of knowingly transporting Victim A, a minor, across state lines to engage in prostitution, in violation of 18 U.S.C. § 2423(a). Victim A, twenty-three years old at the time of the sentencing hearing, testified at the sentencing hearing about her experiences with Shamsud-Din and the traumatic effects they had on her.
After hearing Victim A’s testimony and considering the parties’ arguments, the district court denied the government’s request for an undue influence enhancement but applied vulnerable victim and use of a computer enhancements. The resulting advisory range under the United States Sentencing Guidelines was 135 to 168 months’ imprisonment. The district court imposed a sentence of 180 months’ imprisonment and explained that it would impose the same sentence even if the advisory guidelines were incorrectly calculated. Shamsud-Din appeals his sentence.
II. ANALYSIS
A. Vulnerable Victim Enhancement
Shamsud-Din first contends that he should not have received a vulnerable victim enhancement. The United States Sentencing Guidelines provide for a two-level enhancement if the defendant knew or should have known that a victim of the offense was a vulnerable victim. U.S.S.G. § 3Al.l(b)(l). A “vulnerable victim” under the Guidelines is one who is a victim of the offense of conviction or any relevant conduct and “who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3Al.l(b)(l) cmt. n. 2. We review the district court’s application of the vulnerable victim enhancement for clear error. United States v. Christiansen, 594 F.3d 571, 574 (7th Cir. 2010).
In concluding that the vulnerable victim enhancement was warranted, the district court stated:
The victim here clearly conveyed to the defendant the fact that she did not have a stable place to live; that she did not have a lot of money left; that she was a runaway; and, in addition, in making it significant here, is the fact that she conveyed to the defendant — and this had nothing to do with her age, nor did the other factors, that she conveyed to the defendant — that she was afraid of the prior relationship she had; and, that Individual A was preying on her and had beaten her up and she feared him. And the defendant offered his “protection” to her and he took advantage of that.
Shamsud-Din makes several arguments as to why, in his view, the vulnerable victim enhancement was wrongly applied.
Shamsud-Din also argues that Victim A’s homelessness, runaway status, and economic uncertainty cannot form the basis of a vulnerable victim finding because these factors are “typical” of sex-trafficking victims and are therefore insufficient to show that Victim A was “unusually” vulnerable. See U.S.S.G. § 3Al.l(b)(l) cmt. n. 2 (defining “vulnerable victim” as one who is “unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct”) (emphases added). Even if that were true, a “significant” reason the district court found Victim A vulnerable was that she feared Individual A, a man who had physically and mentally abused her, and that Shamsud-Din knowingly took advantage of that fear. That fear, and Shamsud-Din’s decision to prey on it, means it was not error for the district court to conclude that Victim A was unusually vulnerable or particularly susceptible.
Shamsud-Din also briefly challenges the district court’s finding that Victim A feared Individual A. This is a challenge to a factual finding, so we review it for clear error. See United States v. Rumsavich, 313 F.3d 407, 411 (7th Cir. 2002). Victim A testified at the sentencing hearing that Individual A had- beaten her up, that she was afraid of him, and that she hoped Shamsud-Din could protect her from Individual A. The district court was well within its discretion to credit her testimony and to believe that Victim A feared Individual A. We find no error in the decision to impose the vulnerable victim enhancement.
B. Enhancement for Use of Computer to Facilitate Travel of Minor to Engage in Prohibited Sexual Conduct
Shamsud-Din also challenges the two-level enhancement he received for using a computer to facilitate the travel of a minor to engage in prohibited sexual conduct. The guideline at issue, U.S.S.G. § 2G1.3(b)(3), provides:
If the offense involved the use of a computer or an interactive computer service to (A) persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct; or (B) entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor, increase by 2 levels.
The district court imposed this enhancement “given the use of the cell phone to facilitate the travel of and to facilitate the minor engaging in prohibited sexual conduct.”
We note first that the government does not seek the “use of a computer” enhancement on the basis of Shamsud-Din’s placement of advertisements on Craigslist and other internet websites for Victim A’s sexual services. That is likely because the
Instead, the government sought and received the enhancement on the basis that Shamsud-Din’s use of a cell phone to facilitate Victim A’s travel arrangements constituted the “use of a computer” under U.S.S.G. § 2G1.3(b)(3). Shamsud-Din does not dispute that he used a cell phone to facilitate the travel of a minor to engage in prohibited sexual conduct. But he maintains a cell phone is not a “computer.” That argument certainly has intuitive appeal. The mere use of a cell phone to make and receive calls, especially if that cell phone does not have internet capability (and it is unclear from the record whether the phone at issue here could access the internet), would not seem to fall within most persons’ understanding of the “use of a computer.” Nonetheless, U.S.S.G. § 2G1.3 directs that “computer” for purposes of the enhancement has the meaning given the term in 18 U.S.C. § 1030(e)(1). See U.S.S.G. § 2G1.3 cmt. n. 1. That statute gives “computer” what the district court rightfully called a “very, very broad” definition:
[T]he term “computer” means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility directly related to or operating in conjunction with such a device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.
18 U.S.C. § 1030(e)(1). We have said in another context that this very, very broad definition could encompass a cell phone. See United States v. Mitra, 405 F.3d 492, 495 (7th Cir. 2005). The Eighth Circuit, while acknowledging that “a ‘basic’ cellular phone might not easily fit within the colloquial definition of ‘computer’ ” ruled after considering evidence about a defendant’s cell phone that it was a “computer” for purposes of U.S.S.G. § 2G1.3(b)(3) in light of the definition set forth in 18 U.S.C. § 1030(e)(1). United States v. Kramer, 631 F.3d 900, 903-04 (8th Cir. 2011).
We, however, need not resolve whether the enhancement for use of a computer was warranted. Procedural errors in computing sentencing guidelines are subject to harmless error review. United States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009). “A finding of harmless error is only appropriate when the government has proved that the district court’s sentencing error did not affect the defendant’s substantial rights (here-liberty).” Id. We do not lightly find harmless error regarding a guidelines calculation. We will only find harmless error if the government demonstrates that any error in calculating the advisory guidelines range “ ‘did not affect the district court’s selection of the sentence imposed.’ ” Id. (citation omitted).
It is clear in this case that the district court would have imposed the same sentence even if the use of a computer enhancement was improper. After detailing the reasons for the sentence chosen, the district court explicitly noted that there had been disagreements regarding the guideline calculations and stated that even if the guidelines had been calculated incorrectly, the sentence would not change in light of all the 18 U.S.C. § 3553(a) factors. As in Abbas, the district court judge gave “a detailed explanation of the basis for the parallel result; this was not just a conclu-sory statement tossed in for good meas
III. CONCLUSION
The judgment of the district court is AFFIRMED.
Reference
- Full Case Name
- United States v. Erik SHAMSUD-DIN
- Cited By
- 2 cases
- Status
- Published