Use-of-Computer Enhancement in Sex Trafficking Case Correct; Disregard Application Note 4 as Inconsistent with § 2G1.3(b)(3)(B)

United States v. Pringler, No. 12-10029 (5th Cir. Aug. 26, 2014) (Higginbotham, Jones, Prado)

Pringler was convicted at trial of aiding and abetting sex trafficking of a minor in violation of 18 U.S.C. § 1591(a).  The panel affirmed the conviction, finding the evidence was sufficient (he took the money the minor earned from prostitution, paid for hotel rooms where she met johns, bought the laptop she used to advertise, and drove her to appointments) and that his counsel was not ineffective by failing to move for acquittal at the close of the Government’s case.

With regard to sentencing, Pringler challenges the application of a 2-level increase to his base offense level pursuant to U.S.S.G. § 2G1.3(b)(3), which 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 Commentary to the Sentencing Guideline says that § 2G1.3(b)(3) “is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor” or the minor’s guardian.  § 2G1.3 cmt. n.4. 

Pringler never used a computer to communicate with the minor or her guardian.  So, the panel acknowledges that, if it applies Note 4 of the Guideline Commentary, Pringler would not get the enhancement.  The panel rejects the Government’s argument that Note 4 would be satisfied here because when a pimp communicates with a third party via computer to solicit/advertise sex with a minor, that third party might think the pimp has custody or control over the minor.  Under that scenario, the panel believes the third party could merit the enhancement under Note 4, but not the pimp.

Thus, the panel must decide whether it can avoid giving effect to Note 4 because “it is inconsistent with, or a plainly erroneous reading” of the Guideline.  This is a question of first impression in the Fifth Circuit, and the subject of a circuit split.  The Fourth and Eleventh Circuits have found Note 4 inapplicable and applied the enhancement based on the plain language of the Guideline. The Third and Seventh Circuits have applied Note 4 with different results: in the Third, the enhancement applied despite Note 4’s language because of the third-party argument outlined (and rejected) above; in the Seventh, the enhancement did not apply.

The panel sides with the Fourth and Eleventh Circuits because “under § 1591, there is no factual scenario for which an individual could receive the computer use enhancement, were [the panel] to apply application note 4.”  Applying Note 4, § 2G1.3(b)(3)(B) would only apply to convictions under 18 U.S.C. § 2422(b) for knowingly persuading, inducing, enticing, or coercing a minor to engage in prostitution.  This narrow application of § 2G1.3(b)(3)(B) leads the panel to conclude that Note 4 “can’t mean what it says.”  The panel also analyzes the drafting history of § 2G1.3(b)(3) and concludes that Note 4’s reference to subsection (3) in general—both (3)(A) and (3)(B)—was a drafting error since, prior to 2004, that language only applied to the equivalent of subsection (3)(A), not (3)(B).

In sum, “we hold that the commentary in application note 4 is ‘inconsistent with’ Guideline § 2G1.3(b)(3)(B), and we therefore follow the plain language of the Guideline alone.”  Under the plain language, the 2-level enhancement was correctly applied to Pringler since he bought the computer, showed his partner how to use the webcam, knew the partner and the minor were using the webcam to record encounters with customers, and knew of his partner’s use of the computer to advertise the minor’s services.

The panel also affirms the 2-level enhancement for undue influence of a minor under § 2G1.3(b)(2)(B).  Pringler argues that the minor voluntarily engaged in prostitution, so the undue-influence enhancement should not apply. Since the minor testified about her fear of leaving Pringler, however, and there was evidence that Pringler used the physical abuse of his partner and sexual relations with the minor as control mechanisms, the panel upholds the undue-influence application.

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.