United States v. Washington, No. 13-4132 (4th Cir. 2014)
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Defendant appealed his sentence and conviction for interstate transport of a minor with the intent that the minor engage in prostitution or other criminal sexual activity, in violation of 18 U.S.C. 2423(a). The court concluded that the district court correctly instructed the jury that under section 2423(a), the government was not required to prove that defendant knew that the victim was a minor. The court also concluded that the district court did not abuse its discretion by imposing an upward variance where the district court concluded that the advisory sentencing range neither provided adequate deterrence nor adequately protected the public. Further, the extent of the variance was reasonable. Accordingly, the court affirmed the judgment of the district court.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4132 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DWANE WASHINGTON, a/k/a Cisco, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:12-cr-00085-JAG-1) Argued: December 12, 2013 Decided: February 28, 2014 Before TRAXLER, Chief Judge, and DIAZ and FLOYD, Circuit Judges. Affirmed by published opinion. Judge Diaz wrote the opinion, in which Chief Judge Traxler and Judge Floyd joined. ARGUED: James Brian Donnelly, J. BRIAN DONNELLY, P.C., Virginia Beach, Virginia, for Appellant. Brian R. Hood, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Christopher W. Bascom, Third Year Law Student, UNIVERSITY OF RICHMOND LAW SCHOOL, Richmond, Virginia, for Appellee. DIAZ, Circuit Judge: A jury convicted Dwane Washington of violating 18 U.S.C. § 2423(a), which prohibits the interstate transportation of a minor with the intent that the minor engage in prostitution or other criminal sexual activity. imprisonment. Washington He was sentenced to 240 months challenges his conviction, arguing that § 2423(a) requires the government to prove that he knew his victim was underage. He also contends that the district court abused its discretion by imposing an upward variance. For the reasons that follow, we affirm. I. On appeal from a criminal conviction, we recite the facts in the light most favorable to the government. United States v. Smith, 701 F.3d 1002, 1004 (4th Cir. 2012). A. In the spring of 2012, Washington, then thirty-two years old, met R.C., a fourteen-year-old runaway. Washington approached R.C. on a street in Maryland, where she had already begun engaging immediately, he in prostitution became her and pimp. At using some drugs. point, Washington that she was nineteen years old. R.C. to Nashville Huntsville, and Alabama; Clarksville, and Richmond, 2 Tennessee; Virginia. Almost R.C. told Washington took Birmingham In each and city, Washington used the internet to advertise R.C. as a prostitute. He developed a pricing scale and kept nearly all of the proceeds, which he used to pay for food, lodging, travel, and drugs. In Washington also had sex with R.C. on multiple occasions. Birmingham, prostitution. R.C. was arrested and charged with She gave the police a false name and date of birth, claiming that she was nineteen years old. Washington and R.C. were later arrested in Richmond in an FBI sting operation. During an interview with an FBI agent, R.C. confirmed that Washington was her pimp. B. A grand jury charged Washington with the interstate transportation of a minor with the intent that the minor engage in prostitution or other criminal sexual activity, in violation of 18 U.S.C. § 2423(a). At trial, the district court instructed the jury that the government d[id] not have to prove that the defendant knew that the individual he transported across state lines was under the age of 18 at the time she was transported in order to convict him under § 2423(a). J.A. 376. As the district court explained, the defendant s knowledge of the age of the required . . . . individual by the he transported government Id. at 377. in is order not to part of sustain a the proof conviction The jury subsequently found Washington guilty. 3 After the guilty verdict, the following presentencing notice: district court filed the The Court is hereby placing the parties on notice that the Court will consider sentencing Mr. Washington outside of the guideline range. Specifically, at the sentencing hearing, the Court will consider sentencing Mr. Washington maximum. above guideline range up to the statutory J.A. 411. The presentence subsequently history the investigation calculated category of an IV, offense and a report level resulting (the of 30, a PSR ) criminal advisory Guideline sentencing range of 135 to 168 months imprisonment. Prior to sentencing, the government moved for an upward departure and a variance, seeking a sentence between 188 and 235 months. At Washington s sentencing hearing, the district court stated that it would not impose an upward departure but was considering a variance, and it then permitted the parties to address the issue. § 3553(a) factors Ultimately, the Afterward, the court discussed the 18 U.S.C. and court decided to sentenced impose an upward Washington to 240 variance. months imprisonment. II. The issues before us on appeal are twofold: the district court erred in instructing 4 the (1) whether jury that the government did not have to prove that Washington knew R.C. was a minor, and (2) whether the court erred by imposing an upward variance. We consider each question in turn. 1 A. Washington first challenges the jury instruction that the government was underage. We review de novo a claim that a jury instruction did not correctly not state required the to prove applicable that law. he knew United R.C. States was v. Mouzone, 687 F.3d 207, 217 (4th Cir. 2012), cert. denied, 133 S. Ct. 899 (2013). Section 2423(a) of Title 18 provides: A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life. 1 After formal briefing, Washington, acting pro se, filed a lengthy document styled as a notice of supplemental authority. We decline to consider the filing. Issues that Washington failed to raise in his opening brief are waived, see United States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006), and [w]e do not countenance a litigant s use of [Federal Rule of Appellate Procedure] 28(j) as a means to advance new arguments couched as supplemental authorities, United States v. Ashford, 718 F.3d 377, 381 (4th Cir. 2013). Moreover, Washington has no right to raise substantive issues while he is represented by counsel. See United States v. Cox, 577 F.3d 833, 836 (7th Cir. 2009). 5 Washington argues that the term knowingly in § 2423(a) applies to the clause who has not attained the age of 18 years, thereby requiring the government to prove that he knew R.C. was a minor. He acknowledges that we rejected this argument in United States v. Jones, 471 F.3d 535, 541 (4th Cir. 2006), which held that under § 2423(a) the government is not required to establish age. the defendant s knowledge of the alleged victim s Nevertheless, Washington asserts that Jones is no longer good law after the Supreme Court s decision in Flores-Figueroa v. United States, 556 U.S. 646 (2009). In Jones, modifies the we verb explained that transports the because adverb knowingly [a]dverbs generally modify verbs, and the thought that they would typically modify the infinite grammarians hereafters to of recoil. statutory 471 F.3d at sentences 539. would In our cause view, requiring knowledge of the act of transporting the victim--not knowledge of the victim s age--was [a] more natural reading of the statute. Id. (internal quotation marks omitted). But Jones did not rely on the text of § 2423(a) alone. Rather, more our interpretation general provision counterpart, punishes was 18 also U.S.C. [w]hoever supported by § 2421. See knowingly § 2423(a) s id. transports That any individual in interstate or foreign commerce . . . with intent that such individual engage in prostitution, or in any sexual 6 activity for which any person can be charged with a criminal offense. 2 § 2421. As a textual matter, the only differences between the two statutes are that § 2421 does not include an age element and imposes a lesser punishment. In Jones, we noted that it would be implausible for the knowledge requirement in § 2421 to modify the noun individual. 471 F.3d at 539. implausible to And we concluded that it would be similarly suggest that, in § 2423(a), where the noun individual is modified by the clause who has not attained the age of 18 years, the term knowingly suddenly applie[d] to both the noun and its dependent clause. aside, we deemed it unlikely Id. that, in Grammar problems providing extra protection for minors in § 2423(a), Congress intended to make the evidentiary burdens of that provision disproportionate to those of § 2421. Finally, consistent 2 we with Id. explained that congressional only intent. our Id. interpretation at 540. Section 2421 reads in full as follows: Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both. 7 was Under § 2423(a), the fact that the individual being transported is a minor creates heightened a more protection serious against crime sexual in order to provide exploitation of minors. Id. (internal quotation marks omitted). The defendant s view of the statute, on the other hand, would strip [it] of its clear purpose: the protection of minors. Id. Indeed, [i]mposing such a mens rea requirement would be tantamount to permitting adults to prey upon minors so long as they cultivate ignorance of their victims age. Id. For these reasons, we held in Jones that under § 2423(a) the government is not required to establish age. the defendant s knowledge of the alleged victim s Id. at 541 (emphasis added). Washington analysis in contends Jones. We that Flores-Figueroa disagree. our Flores-Figueroa, In undermines the Supreme Court considered an aggravated identity theft conviction under 18 U.S.C. § 1028A(a)(1). See 556 U.S. at 647. statute who, punishes enumerated an crimes, individual knowingly while transfers, committing possesses, or That other uses, without lawful authority, a means of identification of another person. question 18 U.S.C. presented § 1028A(a)(1) was whether (emphasis the added). statute requires The the Government to show that the defendant knew that the means of identification he or she unlawfully transferred, possessed, or used, in fact, belonged to another person. 8 Flores-Figueroa, 556 U.S. at 647. The Court concluded that it does. Id. It reasoned that [a]s a matter of ordinary English grammar, it seems natural to read the statute s word knowingly as applying to all the subsequently listed elements of the crime. Id. at 650. Nevertheless, the Court did not purport to establish a bright-line rule that a specified mens rea always applies to every element of the offense. Justice Alito s concurrence Instead, it approvingly cited for the proposition that inquiry into a sentence s meaning is a contextual one. 652. the Id. at The majority noted that some statutes may involve special contexts or themselves provide a more detailed explanation of background circumstances that call for a different result, but it did not find a special context in the case before it. Id. Justice Alito wrote separately out of a concern[] that the Court s opinion may be read by some as adopting an overly rigid rule of statutory concurring). construction. Id. at 659 (Alito, J., He agreed with the general presumption that the specified mens rea applies to all of the offense s elements but emphasized that context may rebut that presumption. Id. at 660. As an example, he referenced § 2423(a)--the statute at issue here--and noted that the courts of appeals have uniformly held that knowledge of the victim s age is not required. 9 Id. Several circuits have addressed the effect of Flores- Figueroa on § 2423(a) and have universally concluded that the knowledge requirement does not apply to the victim s age. See United States v. Tavares, 705 F.3d 4, 19-20 (1st Cir.), cert. denied, 134 S. Ct. 450 (2013); United States v. Daniels, 653 F.3d 399, 410 (6th Cir. 2011); Cox, 577 F.3d at 838; cf. United States v. Daniels, 685 F.3d 1237, 1248 (11th Cir. 2012), cert. denied, 133 S. Ct. 1240 (2013) (adopting the reasoning of circuits that have considered the issue under § 2423(a), and find[ing] that § 2422(b) likewise does not require that the government prove that a defendant knew his victim was under the age of eighteen in order to convict ). These circuits agree that the context of § 2423(a) compels a reading of the statute that does not require knowingly to be applied to the victim s age. Tavares, 705 F.3d at 19 (internal quotation marks omitted). We agree with our sister circuits and join them today. Flores-Figueroa does not undermine our decision in Jones. To the contrary, the special context of § 2423(a) supports our previous interpretation of the statute. See Flores-Figueroa, 556 U.S at 660 (Alito, J., concurring) (listing § 2423(a) as an example of a potential special context). We previously identified this special context in Jones, although we did not use that phrase. 10 As we then noted, Congress enacted the provision to provide minors with special protection against sexual exploitation. See Jones, 471 F.3d at 540. It was intended to protect young persons who are transported for illicit purposes, and not transporters who remain ignorant of the age of those whom they transport. marks omitted). In the time Id. (internal quotation since circuit courts first interpreted § 2423(a) as we did in Jones, Congress has amended the statute numerous times but has never changed it to require the result Washington urges here. See id. at 539. Viewed in context, the purpose of § 2423(a) is to make a victim s underage status an aggravating factor in order to provide minors with special protection--not to make the provision protecting minors more difficult to prove than its more general counterpart in § 2421. See id. This special context is sufficient to rebut the general presumption that a specified mens rea applies to all elements of the offense. result from district Flores-Figueroa thus does not compel a different the one we reached court § 2423(a), correctly the government in Jones. instructed was not the Accordingly, jury required to that the under prove that Washington knew that R.C. was a minor. B. We next consider whether the district discretion by imposing an upward variance. 11 court abused its We review a criminal sentence for procedural and substantive reasonableness under a deferential abuse-of-discretion standard. States, 552 U.S. 38, 51 (2007). See Gall v. United We must defer to the district court and affirm a reasonable sentence, even if we would have imposed something different. See United States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010). In reviewing a variant sentence, we consider whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect range. to the extent of the divergence from the sentencing United States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). Washington first contends that the district court did not consider the advisory sentencing range in the PSR. Specifically, he argues that the district court s presentencing notice shows that the court ignored the Guidelines because it issued the notice before the PSR was filed. This argument misconstrues the facts. In its notice, the district court explained that it would consider sentencing Mr. Washington outside of the guideline range. added). J.A. 411 (emphasis Contrary to Washington s assertion, the notice does not suggest that the district court decided to sentence Washington outside of the Guidelines before it reviewed the PSR. Moreover, at the sentencing hearing, the court discussed the contents of the PSR and adopted the report s factual findings. 12 Based on our review of the record, we find that the district court considered Washington s advisory sentencing range before imposing its sentence. Washington also argues that the district court improperly focused on R.C. s age and vulnerability to justify the upward variance. He emphasizes that he only knew R.C. for a short time, believed that she was an adult, and did not introduce her to prostitution or drugs. We find no abuse consideration of these of discretion factors. in the Indeed, district the court s district court recognized that R.C. had used drugs and engaged in prostitution before meeting Washington, but it explained: It is tragic because the victim herself was clearly, as Mr. Washington just pointed out -- and I think as Mr. Hood referred to -- she was already a young lady who was in deep trouble. She was already a prostitute. . . . She was a crack addict. But, in a sense, in a very, very real sense, that vulnerability is what opened her up to be a victim in this offense. . . . She was abused. She was addicted to crack. And I am amazed how Mr. Washington saw that and honed in on that. J.A. 575. The Washington s district belief that something in his favor. The sentencing § 3553(a). district range also R.C. was specifically nineteen noted years old that is J.A. 576. court and court the carefully considered relevant sentencing the advisory factors under For example, the court emphasized that Washington 13 manipulated R.C., took provocative pictures of her, pocketed her money, threatened her, and had sex with her. The court ultimately concluded that the advisory sentencing range neither provided protected the public. adequate deterrence nor adequately In summarizing its reasons for the 240- month prison sentence, the court emphasized that Washington was unrepentant, that he bragged about his criminal drug activity, and that he used his intelligence for evil purposes. 582. Moreover, criminal the history, court which relied on included Washington s adult J.A. extensive convictions for possession of crack cocaine, possession of marijuana, possession of a weapon during the commission of a felony, theft, failure to appear, and charges. vandalism, as well as serious drug trafficking In fact, every year from the age of nineteen until the date of Washington s sentencing in this case, Washington either committed at least one crime or was incarcerated. The record thus provides ample support for the district court s decision to impose an upward variance. We also hold that the extent of the variance was reasonable. The advisory sentencing range was between 135 and 168 imprisonment, months Washington to a term of and 240 the district months. The court court sentenced reasonably concluded that this variance was necessary to deter Washington from committing future crimes 14 and to protect the public. Although the sentence imposed is approximately one-and-a-half times longer than the high end of the advisory range, it is well below the statutory maximum of life imprisonment and serves the § 3553(a) factors. (holding that a advisory sentencing See Hernandez-Villanueva, 473 F.3d at 123 sentence range three was times the reasonable). high We end of decline the to disturb the district court s chosen sentence. III. For the reasons given, we affirm the district court s judgment. AFFIRMED 15
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