UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-4654


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DAPHNE PRATT,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Columbia. Terry L. Wooten, Senior District Judge. (3:16-cr-00207-TLW-2)


Submitted: July 21, 2020                                          Decided: July 27, 2020


Before MOTZ, KEENAN, and QUATTLEBAUM, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David Alan Brown, Sr., DABROWNLAW LLC, Rock Hill, South Carolina, for Appellant.
James Hunter May, Assistant United States Attorney, OFFICE OF THE UNITED
STATES OF AMERICA, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Daphne Pratt pled guilty, pursuant to a written plea agreement, to conspiracy to

engage in child sex trafficking, in violation of 18 U.S.C. §§ 1591(a), 1594(c) (2018). The

district court sentenced Pratt to 120 months’ imprisonment. On appeal, counsel has filed

a brief pursuant to Anders v. California, 

(1967), asserting that there are no

meritorious issues for appeal, but questioning whether 18 U.S.C. § 1591(a), (c) (2018) is

constitutional, whether Pratt is entitled to additional good time credits under the First Step

Act, and whether trial counsel was ineffective. Pratt filed a pro se supplemental brief

raising a Fourth Amendment challenge to a search warrant executed at her home and raising

ineffective assistance of counsel. The Government elected not to file a brief and does not

seek to enforce the appeal waiver in Pratt’s plea agreement. ∗ Finding no error, we affirm.

       First, counsel challenges the constitutional validity of 18 U.S.C. § 1591(a), (c). This

constitutional challenge is not foreclosed by Pratt’s plea agreement. See Class v. United

States, 

(2018) (holding that a guilty plea by itself does not bar a criminal

defendant from challenging the constitutionality of the statute of conviction). A defendant

is guilty of sex trafficking children if she “knowingly . . . recruits, entices, harbors,

transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a

person . . . knowing, or, . . . in reckless disregard of the fact . . . that the person has not



       ∗
        Because the Government has not asserted the appeal waiver as a bar to this appeal,
we may consider the issues raised by counsel and conduct an independent review of the
record pursuant to Anders. See United States v. Poindexter, 

, 271 (4th Cir.
2007).

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attained the age of 18 years and will be caused to engage in a commercial sex act.” 18

U.S.C. § 1591(a). In a case where the defendant “had a reasonable opportunity to observe

the [minor], the Government need not prove that the defendant knew, or recklessly

disregarded the fact, that the person had not attained the age of 18 years.” 18 U.S.C. §

1591(c).

       Pratt argues that 18 U.S.C. § 1591(c)’s alternative scienter requirement that a

defendant had a “reasonable opportunity to observe” the minor imposes strict liability on a

defendant regarding a victim’s age, relieving the Government of its burden to prove that

the defendant knew the victim was under the age of 18. Pratt argues that this “strict

liability” violates the Due Process Clause. We disagree. Pratt’s argument conflates the

concepts of mens rea—which is an element of the crime—and burden of proof—the

“measure of how convincing the government’s evidence must be to establish an element

of the crime.” United States v. Mozie, 

, 1281–82 (11th Cir. 2014).

       “Section 1591 does not actually impose strict liability because the statute,

throughout its revisions, has retained a traditional scienter requirement of knowledge that

the victim will be caused to engage in a commercial sex act.” United States v. Whyte, 

, 1330–31 (11th Cir. 2019), cert. denied, 

(2020) (internal quotation

marks omitted). Proof of a victim’s age “is distinct from the Government’s independent

burden of proving beyond a reasonable doubt that a defendant was knowingly involved in

a commercial sex act.” United States v. Copeland, 

, 812 n.6 (5th Cir. 2016).

       “Congress can—and often does—reduce or eliminate scienter requiring knowledge

of a minor victim’s age in sex crimes.”

And “Congress may dislodge the

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presumption that an element requires proof of a culpable mental state.” 

.   Therefore, although Ҥ 1591(c) imposes strict liability with regard to the

defendant’s awareness of the victim’s age,” United States v. Robinson, 

, 39 (2d

Cir. 2012), the statute does not violate the Due Process Clause because the Government

must still prove all of its elements beyond a reasonable doubt. In any event, here, Pratt

admitted, during the Fed. R. Crim. P. 11 hearing, that she knew that one of the young girls

was under the age of 18. Pratt also concurred with the summary of the guilty plea

agreement’s factual basis, which asserted that she had actual knowledge, at the time of the

offense, that a victim of the scheme was under the age of 18. We therefore find Pratt’s

constitutional challenge to her conviction without merit.

       In her supplemental pro se brief, Pratt also raised a Fourth Amendment violation.

She challenges the validity of a search of her residence. By pleading guilty, Pratt waived

the right to contest any nonjurisdictional defect in the proceedings conducted prior to the

entry of the plea, including constitutional violations. See Tollett v. Henderson, 

, 267 (1973). Accordingly, Pratt’s Fourth Amendment claim is foreclosed.

       Finally, Pratt contends that trial counsel was ineffective for failing to challenge the

denial of a three-level reduction for acceptance of responsibility under U.S. Sentencing

Guidelines Manual § 3E1.1 (2016). She contends that the court erroneously relied on her

pre-indictment and pre-plea agreement conduct to deny the reduction.              Claims of

ineffective assistance generally are not addressed on direct appeal unless “ineffectiveness

conclusively appears on the face of the record.” United States v. Faulls, 

,

507-08 (4th Cir. 2016). To succeed on a claim of ineffective assistance of counsel, the

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movant bears the burden to “show that counsel’s performance was [constitutionally]

deficient” and “that the deficient performance prejudiced the defense.” Strickland v.

Washington, 

, 687 (1984). In the context of a guilty plea, a defendant must

demonstrate a reasonable probability that, but for counsel’s errors, she would have

proceeded to trial. Lee v. United States, 

, 1965 (2017).

       A defendant qualifies for a two-level reduction for acceptance of responsibility if

she enters into “a plea of guilty prior to the commencement of trial combined with

truthfully admitting the conduct comprising the offense of conviction, and truthfully

admitting or not falsely denying any additional relevant conduct for which [she] is

accountable under § 1B1.3.” USSG § 3E1.1, cmt. n.3. However, “conduct resulting in an

enhancement [for obstruction of justice] ordinarily indicates that the defendant has not

accepted responsibility for h[er] criminal conduct.”      USSG § 3E1.1, cmt. n.4.       An

obstruction of justice enhancement is proper when “the defendant . . . attempted to obstruct

or impede, the administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction . . . .” USSG § 3C1.1.

       The record indicates that the court applied a two-level obstruction of justice

enhancement to Pratt’s sentence because, while under investigation for the instant offense,

Pratt attempted to intimidate and influence two Government witnesses to change their trial

testimony. The record before us does not conclusively establish ineffective assistance of

counsel, and we conclude that these claims should be raised, if at all, in a § 2255 motion.

See 

.



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       Lastly, we decline to address Pratt’s entitlement to additional good time credits

under the First Step Act, 132 Stat. 5194, § 102(b) because she has failed to exhaust her

administrative remedies and has not challenged the calculation or award of such credits by

the Bureau of Prisons in a petition for habeas corpus in the district court. See 18 U.S.C.

§ 3624(b)(1) (2018). Therefore, an adjudication of credits at this juncture is premature.

       In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Pratt, in writing, of the right to petition the Supreme

Court of the United States for further review. If Pratt requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then counsel may move in this

court for leave to withdraw from representation. Counsel’s motion must state that a copy

thereof was served on Pratt.

       We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                                                 AFFIRMED




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