No Sex Act Required for Child Sex Trafficking; Harboring Counts for Same Victims in Different Locations Not Plain Error

United States v. Garcia-Gonzalez, No. 11-41097 (Apr. 17, 2013) (Higginbotham, Smith, Elrod)

Garcia was convicted of three counts of child sex trafficking, one count of conspiracy to harbor illegal aliens, and six counts of harboring illegal aliens. He arranged for four minor illegal female aliens to be smuggled from Honduras into the United States under the false pretenses that they would be working in a restaurant. Instead, Garcia made them work in his bar and kept their "wages" to pay down the $4,500 smuggling debt they "owed" him. The only way the girls could earn money to keep for themselves was through having sex with his customers. Two of the four girls had sex with customers; the others did not. Garcia threatened to harm them and their families if they escaped, and the girls were constantly supervised by Garcia or one of his employees.

No Sex Act Required for Child Sex Trafficking
The panel, in affirming a supplemental instruction given by the district court judge, found that a sex act did not have to occur in order for Garcia to be guilty of child sex trafficking under 18 U.S.C. § 1591(a). The panel reasoned that the future verb tense in the statutory language—"will be caused to engage in a commercial sex act"—"indicates that a sex act does not have to occur to satisfy the elements of the child-sex-trafficking offense." The panel also found that the evidence was sufficient to support Garcia’s conviction on all three child-sex-trafficking counts, even though one of those victims did not engage in prostitution. "[A] rational trier of fact could have concluded that Garcia knowingly harbored C.M. and B.Y., and created a situation in which he knew, or at the very least, recklessly disregarded, that his actions would cause C.M. and B.Y. to engage in prostitution with his customers."

Harboring Counts for Same Victims in Different Locations Not Plain Error
Garcia also challenged, for the first time on appeal, three of the six convictions for alien harboring on multiplicity grounds. He was charged with harboring the same three girls in a house and, in separate counts, with harboring them in his bar. The only difference between the counts was the location of the harboring. The statute prohibits harboring "in any place." 8 U.S.C. § 1324(a)(1)(A)(iii). Concluding that "any" is ambiguous because it can mean "one" or "some," the panel determined that the error was not plain. Further, Garcia did not demonstrate a miscarriage of justice resulting from this possible error. Circuit Judge Higginbotham dissented on this point, arguing that the rule of lenity counseled finding plain error and vacating one of the two alien-harboring convictions for each of the three victims.

Sentencing Challenges
Garcia also challenged his 360-month Guidelines sentence, but the panel rejected Garcia’s four arguments. First, the panel found that the two-level increase pursuant to § 2L1.1(b)(6) was not clearly erroneous because "Garcia’s actions intentionally or recklessly created a substantial risk of serious bodily injury by coercing them to engage in prostitution for financial support, regardless of their age." Even if it was clearly erroneous, the error would have been harmless.

Next, the panel rejected Garcia’s argument that the district court should not have applied the § 2L1.1(b)(6) enhancement and the six-level § 2L1.1(b)(8)(B) enhancement to the alien-harboring offenses based on the same conduct: the prostitution of minor aliens. The panel found no error because the enhancements did not necessarily implicate the same conduct since the § 2L1.1(b)(6) enhancement could apply to the one adult victim and the § 2L1.1(b)(8)(B) enhancement only applies to the minor victims. Further, even if the enhancements double-counted the same conduct, the panel stated it was not erroneous since the guidelines in question do not specifically forbid such double-counting.

Garcia also objected to the use of uncharged conduct to be treated as a separate count of conviction for sentencing purposes pursuant to § 2G1.3(d)(1). The panel held this was permissible since the uncharged conduct was relevant conduct under § 1B1.3.

Lastly, Garcia argued that the child-sex-trafficking counts should not have been grouped separately from the harboring counts for the purposes of the multi-count adjustment under § 3D1.4 since all of the ten counts substantially involve the same harm. On plain error review, the panel determined that the error did not affect Garcia’s substantial rights since the adjusted offense level would have been the same. The panel hinted, though, that this was error since the PSR used the same facts from the child-sex-trafficking counts to apply the § 2L1.1(b)(8)(B) enhancement to the alien-harboring counts.

Sentences with Aggravating Role Enhancements and Upward Departure Affirmed in Alien Smuggling and Money Laundering Case

United States v. Chon, No. 11-50143 (Apr. 10, 2013) (Higginbotham, Smith, Elrod) (per curiam)

The panel affirmed convictions for alien smuggling, money laundering, and aiding and assisting in the filing of a false tax return despite challenges to the sufficiency of the evidence. Two defendants also challenged the reasonableness of their sentences.

The panel rejected Garcia-Rico’s argument that the district court erred in imposing a three-level enhancement (§ 3B1.1(b)) for his alleged role as a manager or supervisor of the conspiracy in light of the unrebutted facts in his PSR that "Garcia-Rico received wired monetary payments from alien smugglers that were then used to smuggle, transport, and harbor illegal aliens." Chon also challenged his four-level enhancement (§ 3B1.1(a)) for being a leader or organizer of the money-laundering offense, but the panel affirmed given the evidence in the record.

The panel found, however, that the district court procedurally erred by not explaining the upward departure of forty-five months for Chon’s sentence. Chon did not object before the district court, so this was subject to plain error review. The district court only made a passing reference to § 3553(a) and did not provide any explanation for the sentence it selected. In the statement of reasons, however, the court indicated that it was departing "for reasons authorized by the sentencing guidelines manual" and then selected the box indicating that the sentence was based upon the government motion for upward departure. While this was clearly erroneous, the panel held that it did not affect Chon’s substantial rights since the government’s motion extensively discussed the rationale for recommending the statutory maximum for each count of conviction.

So, be sure to object in district court to unreasonable sentences. Otherwise, a judge’s mere checking of a box and the government’s arguments in a motion or in the PSR will be sufficient for appellate review.

"Substantially Facilitate" Element of Illegal Alien Harboring Means to Make Alien's Presence Substantially "Easier or Less Difficult"

United States v. Shum, No. 06-11002 (5th Cir. Aug. 10, 2007) (Higginbotham, Wiener, Garza)

Shum, who was the vice-president of an office-cleaning company that employed illegal aliens as janitors, was convicted of alien harboring for gain under 8 U.S.C. § 1324. On appeal, he argued that the Government failed to prove that he "substantially facilitated" the aliens' presence in the United States, an element of the offense. Specifically, he argued that employing the aliens made it more likely that their illegal presence would be detected, and that, because the aliens remained in the U.S. before and after they worked for Shum, his conduct had nothing to do with their continued illegal presence in the U.S.

The court rejected what it characterized as Shum's "but-for" argument. Relying on a Second Circuit opinion (which in turn cites legislative history), the court concluded that "Congress intended for § 1324 to deter '[e]mployers . . . from hiring unauthorized aliens and this, in turn[,] will deter aliens from entering illegally or violating their status in search for employment.'" (alterations in Shum). "[D]eclin[ing] to adopt a definition of 'substantially facilitate' that undermines Congress's purpose in enacting § 1324[,]" the court held that "to 'substantially facilitate' means to make an alien's illegal presence in the United States substantially 'easier or less difficult.'"

The court went on to find the element satisfied in this case. Shum gave the aliens fake ID's "to facilitate the background check required to clean government buildings," and failed to file requried social security paperwork. By employing the aliens and "shield[ing] their identities from detection by the Government[,]" Shum substantially facilitated their illegal presence in the U.S.