Monday, September 15, 2014

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

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.

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