Filed: Aug. 14, 2009
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 08-15704 ELEVENTH CIRCUIT AUGUST 14, 2009 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 07-00056-CR-4-RH-WCS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CARLOS ANDRES MONSALVE, a.k.a. Toty, a.k.a. Toti, a.k.a. Sebastian, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Florida _ (August 14, 2009) Before TJOFLAT,
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 08-15704 ELEVENTH CIRCUIT AUGUST 14, 2009 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 07-00056-CR-4-RH-WCS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CARLOS ANDRES MONSALVE, a.k.a. Toty, a.k.a. Toti, a.k.a. Sebastian, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Florida _ (August 14, 2009) Before TJOFLAT, ..
More
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15704 ELEVENTH CIRCUIT
AUGUST 14, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-00056-CR-4-RH-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ANDRES MONSALVE,
a.k.a. Toty,
a.k.a. Toti,
a.k.a. Sebastian,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 14, 2009)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Defendant-Appellant Carlos Monsalve appeals his 240-month sentences for
multiple offenses involving the transporting, harboring, and importing of illegal
aliens for the purpose of prostitution. After review, we affirm.
I. BACKGROUND
On appeal, Monsalve challenges two of the district court’s advisory
guidelines calculations. Specifically, Monsalve appeals the district court’s fact
findings that (1) he caused two victims (“Victims 1 and 2”) to engage in sexual
acts by placing them “in fear,” which triggered a higher base offense level, and (2)
Victims 1 and 2 were vulnerable victims, which increased his base offense level by
two levels. We first review the procedural history and Monsalve’s offense conduct
on which the district court based these findings.
A. Indictment
In 2007, Monsalve and four codefendants were indicted on 11 counts.
Count 1 charged Monsalve with conspiracy to defraud the United States, in
violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and 18 U.S.C. § 371, with four objects
of the conspiracy: (1) knowing that force, fraud, and coercion would be used to
cause a person to engage in prostitution, transporting, recruiting, and harboring
such a person to receive a benefit; (2) transporting illegal aliens for the purpose of
commercial advantage and private financial gain; (3) knowingly importing female
2
aliens and harboring them for purposes of prostitution; and (4) knowingly
transporting, or attempting to transport, aliens with the intent that they engage in
prostitution. The indictment also charged Monsalve with sex trafficking by force,
fraud, or coercion, in violation of 18 U.S.C. §§ 1591 and 2 (Counts 2, 3, and 4);
transporting and harboring illegal aliens, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(iii), (B)(I) (Count 5); aiding and abetting the importation of aliens
for the purpose of engaging in prostitution, in violation of 8 U.S.C. § 1328 and 18
U.S.C. § 2 (Counts 6, 7, and 8); and aiding and abetting the transportation of aliens
for prostitution, in violation of 18 U.S.C. §§ 2421 and 2 (Counts 9, 10, and 11).
B. Plea and Offense Conduct
Pursuant to a plea agreement, Monsalve pled guilty to Counts 1 and 5 to 11.
Monsalve admitted that he was guilty of Objects 2 through 4 of the Count 1
conspiracy charge. However, Monsalve specifically did not plead guilty to Object
1, which charged him with transporting, recruiting, and harboring a person while
knowing that force, fraud, and coercion would be used to cause that person to
engage in prostitution.
Monsalve’s presentence investigation report (“PSI”) detailed his offense
conduct. In 2005, Monsalve and others began smuggling women into the United
States and making them work as prostitutes until they paid off their smuggling
3
fees. Monsalve paid someone in Guatemala to recruit women to the United States
to work as prostitutes. Monsalve also used a contact in Costa Rica, who recruited
Colombian women for Monsalve and provided fraudulent passports and
identification cards. Most of the women knew they would work as prostitutes in
the United States, but Victims 1 and 2 were promised legitimate work.
Monsalve charged the Guatemalan women a $15,000 to $16,000 smuggling
fee and the Colombian women a $20,000 smuggling fee.1 The women were
expected to work six to seven days a week and have sex with approximately 20 to
25 men a night. Monsalve typically charged customers $30 for 15 minutes of sex.
Monsalve and his group kept all of the proceeds and applied $15 of each
transaction to that woman’s smuggling debt. After a woman worked off her
smuggling debt, which generally took three to four months, the woman could
continue to work as a prostitute and keep $15 from each transaction.
Monsalve ran the daily operation of the conspiracy, which operated out of
Tampa, Jacksonville, and Tallahassee, Florida. Each city had its own manager,
each of whom was indicted as a codefendant. The women rotated among cities on
a weekly basis. Monsalve and his codefendants provided residences for the
women, delivered them to customers, and transported them from city to city.
1
Testimony at Monsalve’s sentencing hearing indicated that these smuggling fees were
significantly higher than average.
4
Victims 1 and 2 were recruited from Guatemala and, unlike most of the other
women recruited, were promised high-paying, legitimate jobs in the United States
and assistance in becoming United States citizens. After being smuggled into the
United States and transported to Tallahassee, the women were picked up by Jorge
Melchor, one of Monsalve’s codefendants.2 Melchor told Victims 1 and 2 that
their job was to have sex with men in order to repay their debts and that they
should have been told that in Guatemala. On the day they arrived in Tallahassee,
Melchor drove Victims 1 and 2 to shop for clothes and then to various residences
where they had sex with numerous men.
The next day, Melchor received a call from Monsalve. Melchor told
Monsalve that Victims 1 and 2 did not want to have sex with more men. Monsalve
talked to Victims 1 and 2 and insisted that they had to go back to work. Melchor
threatened the women that, if they attempted to flee, he would find them and bring
them back and that, if they went to the police, they would be deported. Victim 2
had sex with more men later that day. The following day, Victims 1 and 2 fled
from the Tallahassee house.
C. PSI’s Advisory Guidelines Calculation
The PSI applied the multiple count aggregation rules under U.S.S.G.
2
Melchor was convicted, and his appeal is in the briefing stage.
5
§ 3D1.2 to determine Monsalve’s offense level.3 The PSI grouped Objects 2 and 3
of Count 1 and Counts 6 to 11 by victim for each of the 16 victims, providing 16
count groups, and calculated the offense levels for these 16 count groups under
§ 2G1.1.4 See U.S.S.G. §§ 2G1.1(d)(1), 3D1.2(b). The PSI also identified a 17th
count group, which addressed the conduct reflected in Object 4 of the conspiracy,
as well as Count 5, and calculated the offense level for this 17th count group under
§ 2L1.1.
Monsalve’s challenges on appeal focus on count groups 1 and 2, which
addressed the conduct related to Victims 1 and 2. In calculating the offense level
for count groups 1 and 2, the PSI noted that § 2G1.1 set Monsalve’s base offense
level at 14. The PSI applied several enhancements under § 2G1.1, including a
four-level enhancement under § 2G1.1(b)(1) because Monsalve coerced Victims 1
and 2 into engaging in prostitution.5 The PSI initially determined that the adjusted
offense level for count groups 1 and 2 of the 17 count groups was 26.
The § 2G1.1 enhancements and this initial adjusted offense level of 26
became irrelevant, however, when the PSI next reported that Monsalve caused
3
The PSI used the 2007 Sentencing Guidelines.
4
According to the PSI, the government identified at least 16 alien women with whom
defendant Monsalve was involved for the purpose of prostitution.
5
“Coercion” is defined in Application Note 2 of § 2G1.1 as conduct that “negates the
voluntariness of the victim.”
6
Victims 1 and 2 to engage in a sexual act by placing them in fear.6 Based on this
finding, the PSI stated that the cross-reference in § 2G1.1(c)(1) applied and
required that § 2A3.1 be used to calculate Monsalve’s base offense level.7 Under
§ 2A3.1, Monsalve’s base offense level for count groups 1 and 2 was 30. The PSI
then recommended several enhancements, including a two-level, vulnerable-victim
enhancement under § 3A1.1(b). Monsalve’s final adjusted offense level for each
of count groups 1 and 2 was 38. Ultimately, after a two-level increase under
§ 3D1.4, Monsalve’s final, combined adjusted offense level was 40.8
6
Section 2G1.1, the guideline for the crime of promoting prostitution, includes a cross-
reference providing that, “[i]f the offense involved conduct described in 18 U.S.C. § 2241(a) or
(b) or 18 U.S.C. § 2242, apply § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal
Sexual Abuse).” U.S.S.G. § 2G1.1(c)(1) (2007). For purposes of this cross-reference, conduct
described in 18 U.S.C. § 2242 includes an attempt to “engag[e] in, or caus[e] another person to
engage in, a sexual act with another person by threatening or placing the victim in fear (other
than by threatening or placing the victim in fear that any person will be subject to death, serious
bodily injury, or kidnapping).” Id. § 2G1.1 cmt. n.4(B)(i).
7
In United States v. Pipkins, 378 F.3d 1281, 1300-01 (11th Cir. 2004), vacated,
544 U.S.
902,
125 S. Ct. 1617 (2005), opinion reinstated by,
412 F.3d 1251 (11th Cir. 2005), this Court
distinguished the conduct that triggers the coercion enhancement under § 2G1.1(b)(1) from the
conduct that triggers the cross-reference in § 2G1.1(c)(1), as follows: “a pimp’s threatening a
prostitute to coerce her to stay in his custody would . . . satisfy the enhancement (which requires
prostitution plus coercion) but not the cross-reference (which requires coercion to perform a sex
act).” We also stated in Pipkins that, because the cross-reference would not always subsume the
enhancement, “some overlap in the enhancement and the cross-reference does not offend the
Sentencing Guidelines or any other law.”
Id. at 1301. The mandatory language in the cross-
reference demanded that, “when there is this overlap, the judge must apply the cross-reference.”
Id.
8
Section 3D1.4 provides that:
The combined offense level is determined by taking the offense level applicable
to the Group with the highest offense level and increasing that offense level by
the amount indicated in the following table:
7
The PSI recommended a denial of any adjustment for acceptance of
responsibility because “[t]he defendant has failed to accept personal responsibility
for his involvement in the offense as required by § 3E1.1.”
D. Objections to the PSI
Before sentencing, Monsalve objected to, inter alia, the preliminary four-
level enhancement under § 2G1.1(b)(1) and the application of the cross-reference
in § 2G1.1(c)(1) on the grounds that there was no coercion or fear.
The government responded with excerpts from the testimony of Victims 1
and 2 at Melchor’s trial, which the government claimed demonstrated that
Monsalve placed Victims 1 and 2 in fear. At Melchor’s trial, Victim 1 testified
that she worked as a waitress in Guatemala and was led to believe that she could
continue to work as a waitress if she used a smuggler to enter the United States.
After smugglers helped Victim 1 enter the United States, her identity documents
were taken from her. Upon arriving in Tallahassee, Melchor informed Victim 1
Number of Units Increase in Offense Level
1 none
1 1/2 add 1 level
2 add 2 levels
2 1/2 - 3 add 3 levels
3 1/2 -5 add 4 levels
More than 5 add 5 levels
In determining the number of Units for purposes of this section:
(a) Count as one Unit the Group with the highest offense level. Count one
additional Unit for each Group that is equally serious . . . .
8
that she had to work as a prostitute. That same day, she was taken to
approximately 10 residences and had sex with one to six men at each location.
During that time, Victim 1 complained, and Melchor responded that she had
to have sex with more men before he would take her back home. Victims 1 and 2
did not tell Melchor that they had been promised jobs as waitresses because they
feared that Melchor would then watch them closely, making escape impossible.
After having sex with several men, Victim 1’s genitals hurt and Victim 2 was
bleeding. The next day, Victims 1 and 2 refused to go to work, and Melchor
telephoned Monsalve. Monsalve told the women that they had to keep working to
pay off their debts. Victim 2 went out and had sex with more men.9
E. Sentencing
At sentencing, the government called Melchor to testify. Melchor stated that
he picked up Victims 1 and 2 when they arrived in Tallahassee and took them to
have sex with men. Afterwards, Victims 1 and 2 complained about having to work
as prostitutes. The two women told Melchor that they believed they were going to
work as waitresses. After he explained the real nature of the work, both women
agreed to do their best. Melchor remembered that one of the victims complained
and cried a lot about working as a prostitute and indicated that she did not want to
9
Victim 2’s testimony regarding the events described above was substantially similar to
Victim 1’s.
9
work anymore, but on other occasions she stated that the work was tolerable
because of the money. When asked if Victims 1 and 2 told him that they thought
they would be working at a bar and not as prostitutes, Melchor stated that “at the
beginning, yeah, they all [come] in with that thought.” At some point, Monsalve
called Melchor, and Melchor informed Monsalve that Victims 1 and 2 were
complaining and did not want to work. Monsalve spoke directly to Victims 1 and
2, and both women started crying as soon as they spoke to Monsalve. Melchor
stated that he did not hear the conversation between Monsalve and Victims 1 and 2
because he left the room. The women fled after their conversation with
Monsalve.10
The district court sustained Monsalve’s objections to the PSI’s denial of a
reduction for acceptance of responsibility but overruled Monsalve’s other
objections and adopted the PSI’s findings and calculations. Notably, the district
court found that: (1) the cross-reference in § 2G1.1(c)(1) applied because
10
The government also called Luz Ramos, a female codefendant of Monsalve and
Melchor. Ramos testified that her boyfriend supervised Monsalve’s operation in Jacksonville.
After Ramos’s arrest, Monsalve instructed her to say that he was not the boss of the
organization. When Ramos began cooperating with the government, Monsalve wrote letters to
her, reminding her that he knew where her daughter and other family were located. Ramos
stated that, upon receiving these letters, she feared for her family’s safety.
On cross-examination, Ramos admitted that Monsalve never directly threatened her
daughter or family in Columbia. Ramos stated, however, that she knew that Monsalve’s wife,
who had cheated on him, was afraid of returning to Columbia because he “would do something
to her.”
10
Monsalve’s telephone conversation with Victims 1 and 2 was “an attempt, at least,
to cause them to engage in sexual acts by placing them in fear”; (2) Monsalve’s
telephone comments were an overt, coercive act to make the women have sex,
against their wills, to pay off their debts; (3) Monsalve talked to the women
because they had “balked at engaging in sexual acts”; and (4) Victims 1 and 2 were
crying after talking to Monsalve. The district court adopted the PSI’s finding that
the women initially were coerced into prostitution because they: (1) did not find
out that they would be working as prostitutes until arriving in the United States
illegally; (2) did not know anyone in the United States; (3) did not speak English;
(4) had a $16,000 debt “hanging over [their] head[s]”; and (5) were threatened by
Melchor, who was working under Monsalve’s direction, that he would find them if
they fled and could have them deported.
After granting a three-level reduction for acceptance of responsibility, the
district court found that Monsalve’s new adjusted offense level was 37. With
Monsalve’s criminal history category of I, his advisory guidelines range was 210 to
262 months’ imprisonment. Monsalve declined to present anything further
regarding the 18 U.S.C. § 3553(a) factors.
The district court imposed a sentence of 240 months’ imprisonment.
Monsalve appeals.
11
II. DISCUSSION
Monsalve first argues that the district court erred in applying the cross-
reference in § 2G1.1(c)(1) based on its finding of fear.11 Monsalve argues that any
finding by the district court regarding fear was based on equivocal and
contradictory evidence because he specifically did not plead guilty or stipulate to
Object 1 of Count 1.
Neither the guidelines nor the statutes referenced by the guidelines (namely,
18 U.S.C. § 2242) define “fear.” However, our sister circuits have stated that
“[t]he definition of ‘fear,’ as used in 18 U.S.C. § 2242(1), is very broad.” United
States v. Castillo, 140 F.3d 874, 885 (10th Cir. 1998) (citing United States v.
Gavin,
959 F.2d 788, 791 (9th Cir. 1992)). “The element is satisfied when the
defendant’s actions implicitly place the victim in fear of some bodily harm.” Id.;
see also
Gavin, 959 F.2d at 791 (stating that “the possible range of ‘fear,’ is very
large”).
Here, we cannot say the district court clearly erred in its fact finding that
Monsalve placed Victims 1 and 2 in fear or in its application of the cross-reference
11
We review a district court’s interpretation of the Sentencing Guidelines de novo and its
factual findings for clear error. United States v. Vance, 494 F.3d 985, 994 (11th Cir. 2007).
Monsalve uses the term “coercion” in referring both to the cross-reference in
§ 2G1.1(c)(1) and the enhancement in § 2G1.1(b)(1). We use the term “fear” in this discussion
to refer to the cross-reference because that is the term used by 18 U.S.C. § 2242, which is listed
in the cross-reference. See supra note 6; U.S.S.G. § 2G1.1(c)(1).
12
in § 2G1.1(c)(1). The fact finding is supported by the record. Victims 1 and 2
came to the United States thinking they would be waitresses. After arriving in the
United States illegally, they were told they owed Monsalve a $16,000 smuggling
fee and that they must repay him by working as prostitutes. They had their
identification documents taken from them, spoke no English, and depended on
Monsalve and his associates for food, water, shelter, and clothing. Melchor, one of
Monsalve’s managers, threatened Victims 1 and 2 that he could have them
deported if they tried to escape. Moreover, Monsalve personally spoke to Victims
1 and 2 on the phone because they expressed to Melchor that they did not want to
continue to prostitute themselves. This conversation left Victims 1 and 2 in tears,
and Victim 2 slept with more men shortly thereafter. Because the district court’s
finding of fear satisfied the cross-reference requirement in § 2G1.1(c)(1), the
district court was required to apply § 2A3.1.12 See Pipkins, 378 F.3d at 1301.
Monsalve also argues that the district court erred in applying the vulnerable-
victim enhancement under § 3A1.1(b) to count groups 1 and 2. Monsalve claims
that Victims 1 and 2 showed no susceptibility to criminal conduct and that he did
12
In his brief, Monsalve mainly argues that the district court erred in applying the four-
level enhancement for coercion under § 2G1.1(b)(1). However, the PSI’s calculations, which the
district court adopted, reset Monsalve’s base offense level in applying the cross-reference in §
2G1.1(c)(1), meaning the earlier coercion enhancement had no effect on Monsalve’s sentence.
Because we affirm the district court’s application of the cross-reference in § 2G1.1(c)(1) and use
of the offense level in § 2A3.1, Monsalve’s challenge to the coercion enhancement is academic,
and we need not address it.
13
not select the victims due to their vulnerability to the offense. Moreover,
Monsalve asserts that it is error to rely solely on the victims’ illegal status as a sign
of their vulnerability because this status is a necessary element of the crime of alien
smuggling.
Section 3A1.1(b) provides for a two-level enhancement “[i]f the defendant
knew or should have known that a victim of the offense was a vulnerable victim.”
U.S.S.G. § 3A1.1(b)(i). A “vulnerable victim” is “a person . . . who is unusually
vulnerable due to age, physical or mental condition, or who is otherwise
particularly susceptible to the criminal conduct.” Id. § 3A1.1 cmt. n.2(B). The
adjustment should be applied only when “the defendant selects his victim due to
the defendant’s perception of the victim’s vulnerability to the offense.” United
States v. Day,
405 F.3d 1293, 1296 (11th Cir. 2005) (quotation marks omitted)
(concluding that elderly victims were vulnerable not because of their age, per se,
but because the defendants repeatedly targeted the elderly individuals,
demonstrating that the defendants knew the victims were particularly vulnerable).
The district court did not clearly err in finding that Victims 1 and 2 were
vulnerable and therefore applying the vulnerable-victim enhancement.13 The
13
We generally review de novo the application of the vulnerable-victim enhancement, but
the district court’s determination of a victim’s “vulnerability” is a factual finding given due
deference. United States v. Amedeo, 370 F.3d 1305, 1317 (11th Cir. 2004).
Monsalve acknowledges that he did not object explicitly to the victim-related
14
victims were vulnerable not because of being illegal aliens per se, but because they
had no identity papers, and thus would be unlikely to report criminal conduct to the
police, had no jobs or income for even basic necessities, making them susceptible
to criminal conduct for income, and spoke no English and had no family in the
United States or place to live other than what Monsalve provided, making them
vulnerable to pressure to engage in criminal conduct. And because Monsalve
repeatedly targeted women in Victim 1 and 2’s situation, the district court could
infer that Monsalve knew such victims were particularly vulnerable to criminal
conduct.
For the foregoing reasons, we affirm Monsalve’s sentences of 240 months’
imprisonment.
AFFIRMED.
adjustments under § 3A1.1(b), but argues that he implicitly did so by objecting to the application
of the § 2G1.1(c)(1) cross-reference, as the issue of coercion was common to both. Because we
discern no error under any standard of review, we need not address whether Monsalve’s
objection preserved the issue for appeal.
15
