Filed: Sep. 02, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4816 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEREMY NAUGHTON, a/k/a Jerms Black, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. J. Frederick Motz, Senior District Judge. (8:12-cr-00229-JFM-1) Argued: May 13, 2015 Decided: September 2, 2015 Before KING and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed in part, vacated in part, and
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4816 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEREMY NAUGHTON, a/k/a Jerms Black, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. J. Frederick Motz, Senior District Judge. (8:12-cr-00229-JFM-1) Argued: May 13, 2015 Decided: September 2, 2015 Before KING and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed in part, vacated in part, and ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4816
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEREMY NAUGHTON, a/k/a Jerms Black,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. J. Frederick Motz, Senior District
Judge. (8:12-cr-00229-JFM-1)
Argued: May 13, 2015 Decided: September 2, 2015
Before KING and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Keenan wrote the opinion, in which Judge King
and Senior Judge Davis joined.
ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Sujit Raman,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Mark W.
Crooks, Paul Budlow, Assistant United States Attorneys, James D.
Houghton, Student Law Clerk, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
BARBARA MILANO KEENAN, Circuit Judge:
Jeremy Naughton was convicted by a jury of numerous charges
arising from his involvement in an interstate sex trafficking
enterprise. On appeal, Naughton challenges: (1) the district
court’s denial of his motions to suppress certain evidence
obtained from two warrantless searches of an apartment he
formerly occupied; and (2) his conviction under 18 U.S.C.
§ 924(c) for brandishing a firearm in furtherance of a crime of
violence, namely, conspiracy to commit sex trafficking in
violation of 18 U.S.C. § 1594(c).
Upon our review, we affirm the district court’s denial of
Naughton’s motions to suppress. We hold that one of the
searches was conducted lawfully based on the police officers’
reasonable belief that Naughton had abandoned any interest in
the apartment. With respect to the other search, we conclude
that any error in admitting into evidence certain items seized
was harmless beyond a reasonable doubt. However, we vacate
Naughton’s conviction under Section 924(c), because we conclude
that the district court plainly erred in determining that
conspiracy to commit sex trafficking qualifies as a crime of
violence.
3
I.
We begin by describing the facts relevant to the two
searches at issue in this appeal. Because the district court
denied Naughton’s motions to suppress the evidence obtained
during these searches, we construe the evidence in the light
most favorable to the government. United States v. Montieth,
662 F.3d 660, 664 (4th Cir. 2011) (quotation marks and citation
omitted).
The first search took place on September 22, 2010 (the
September search), after an unidentified woman placed a
telephone call to a “911 operator” in Brooklyn, New York, to
report an ongoing incident at 322 Marcus Garvey Boulevard,
Apartment 2R (the apartment, or Naughton’s apartment). The
government later offered evidence establishing that Naughton had
leased and had lived in this apartment.
The unidentified caller stated that she had received a
“text message” on her cellular telephone from a female friend
who reported that she was being held against her will in the
apartment by a man in possession of a firearm. The caller did
not identify herself, her friend, or the perpetrator, and did
not provide any additional information to the emergency
operator.
When the officers arrived at the apartment building, the
external door to the building was open, and the officers entered
4
the building and climbed the stairs to the second-floor
apartment. The officers “constantly knock[ed]” on the apartment
door for about three minutes, while identifying themselves as
police. No one responded.
The officers did not observe any obvious criminal activity
outside the building, nor did they see or hear anything unusual
in the area of the apartment. Additionally, the officers did
not attempt to communicate with neighbors to inquire about the
reported incident. After a few minutes had passed, several
officers climbed the fire escape to enter the apartment through
a window.
Upon entering the apartment, the officers found no one
inside. 1 The officers seized a handgun and ammunition that were
lying on a counter in plain view.
Officers searched the same apartment again on June 2, 2011
(the June search), after two Assistant United States Attorneys
from Maryland, a detective from the Montgomery County, Maryland
Police Department, and a detective from the New York City Police
Department went to the apartment to obtain a photograph of the
building. When the four individuals (the officers) arrived at
the apartment building, an officer rang several of “the buzzers”
1 Law enforcement officers later determined that the
telephone call to the emergency services operator was a hoax.
5
in an effort to enter the locked exterior door of the building.
A woman dressed in a bathrobe responded to the front door of the
building. After the woman identified herself as the landlord
and superintendent of the building, the officers did not ask her
to produce verifying identification.
The woman informed the officers that Naughton’s apartment
“was vacant,” that she had not seen Naughton in “a couple
weeks,” and that he had been evicted. She explained that she
had arranged for the apartment to be cleaned the next day, and
that the locks to the apartment had been changed. Although the
woman did not have the new keys to the apartment, she attempted
to contact her sister, the other co-landlord of the building who
allegedly retained the new keys, but did not succeed in reaching
her.
Although the door to the apartment was locked, two officers
entered the landlord’s apartment at her suggestion, climbed up
the fire escape, and entered Naughton’s apartment through a
window. The apartment was “dirty” and “in disarray,” and the
officers discovered and seized numerous items, including used
condoms and women’s clothing.
Following further investigation into Naughton’s involvement
in an interstate sex trafficking enterprise, a grand jury issued
a 16-count superseding indictment charging Naughton with: one
count of conspiracy to commit sex trafficking, in violation of
6
18 U.S.C. § 1594(c) (count 1); one count of using, carrying, and
brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c) (count 2); six
counts of sex trafficking, in violation of 18 U.S.C. § 1591
(counts 3, 4, 6, 8, 11, and 12); six counts of transporting an
individual to engage in prostitution, in violation of 18 U.S.C.
§ 2421 (counts 5, 7, 9, 10, 13, and 16); one count of
kidnapping, in violation of 18 U.S.C. § 1201(a)(1) (count 14);
and one count of possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1) (count 15).
Before trial, Naughton moved to suppress the firearm and
ammunition seized during the September search, as well as the
items seized during the June search. After the district court
held an evidentiary hearing, the court denied Naughton’s motions
to suppress.
Following a 14-day trial in which seven victims and former
prostitutes testified as part of the government’s case, a jury
convicted Naughton of most of the charges, acquitting him only
of the charges in counts 3, 11, 14, and 15. The district court
imposed a total sentence of 36 years’ imprisonment, which
included a consecutive sentence of 84 months’ imprisonment on
count 2 for brandishing a firearm in furtherance of a crime of
violence. The district court denied Naughton’s motions for
judgment of acquittal. This appeal followed.
7
II.
On appeal, Naughton challenges the district court’s denial
of his motions to suppress evidence seized in the two searches
of the apartment. He also challenges his conviction under count
2, for brandishing a firearm in furtherance of a crime of
violence in violation of 18 U.S.C. § 924(c).
A.
We first address Naughton’s arguments relating to the two
searches. In considering a district court’s denial of motions
to suppress evidence, we review the court’s legal conclusions de
novo and its factual findings for clear error. Montieth, 662
F.3d at 664.
i.
Naughton argues that the June search of the apartment was
an unreasonable search in violation of the Fourth Amendment and
that, therefore, the district court erred in admitting the
evidence seized during the search. Naughton contends that he
maintained a protected privacy interest in the apartment because
he had not been issued an order of eviction before the time of
the search. Accordingly, Naughton asserts that the officers
violated his Fourth Amendment rights by entering his apartment
without a warrant and without his consent. Naughton also
maintains that the officers unreasonably relied on the
representations made by the purported landlord that Naughton had
8
abandoned his interest in the apartment. We disagree with
Naughton’s arguments.
The Fourth Amendment guarantees the right of individuals
“to be secure in their persons, houses, papers, and effects,”
and affords protection from “unreasonable searches and
seizures.” U.S. Const. amend. IV. These Fourth Amendment
protections extend to an individual occupying a residence under
a lease. United States v. Stevenson, 396 F.3d 538, 546 (4th
Cir. 2005) (citing Chapman v. United States,
365 U.S. 610, 616-
17 (1961)). Thus, a landlord or building owner typically cannot
consent to a warrantless search of a tenant’s leasehold
property.
Chapman, 365 U.S. at 616-17.
Generally, a search of an individual’s residence conducted
without a warrant and without proper consent is unreasonable,
based on the individual’s reasonable expectation of privacy in
his residence. Kyllo v. United States, 533 U.S. 27, 31-33
(2001). However, when an individual “voluntarily abandons his
privacy interest in property, his subjective expectation of
privacy becomes unreasonable, and he is precluded from seeking
to suppress evidence seized from it.”
Stevenson, 396 F.3d at
546; see also United States v. Hoey,
983 F.2d 890, 892 (8th Cir.
1993) (“The warrantless search of abandoned property does not
constitute an unreasonable search”).
9
In determining whether an individual has abandoned his
privacy interest in this context, we focus not simply on whether
“all formal property rights have been relinquished.” Stevenson,
396 F.3d at 546. Instead, we consider all the objective facts
available to the officers at the time of the search, and any
surrounding circumstances such as whether the tenant has paid
the rent due, whether the tenant has communicated an intent to
abandon the premises, and whether the tenant has vacated the
property.
Id. at 546-47; United States v. James,
534 F.3d 868,
873 (8th Cir. 2008).
In the present case, we conclude that the objective
evidence available to the officers showed that Naughton had
abandoned his privacy interest in the apartment, despite the
fact that his tenancy had not formally expired at the time of
the June search. Most notably, the district court found
credible the officers’ testimony that the woman who identified
herself as Naughton’s landlord had told the officers that the
apartment had been vacant for two weeks, and that the locks on
the apartment had been changed. We discern no clear error in
the district court’s factual findings. See Montieth, 662 F.3d
at 664.
Additionally, we conclude that the record supports the
district court’s determination that the officers reasonably
believed that they were speaking to the landlord, and that she
10
had provided reliable information regarding Naughton’s intent to
vacate his apartment on a permanent basis. When the woman
answered the door to the building wearing a bathrobe, providing
circumstantial evidence that the woman lived in the building,
she also identified herself as the landlord. She was able to
answer questions about where Naughton’s apartment was located,
when she last had seen Naughton, and the statements he had made
regarding his intent to vacate the apartment.
The woman further informed the officers that Naughton had
been evicted, that he had “taken what [personal property] he
wanted and left the rest,” and that the apartment was scheduled
to be cleaned the next day. Moreover, the woman attempted, in
the officers’ presence, to contact her sister and co-landlord to
obtain a key to the apartment. Thus, the fact that the woman
did not have a key to the apartment did not undermine the
reliability of her representations to the officers. Based on
these circumstances, we hold that the district court did not err
in concluding that the officers reasonably relied on her
representations indicating that Naughton had abandoned his
privacy interest in the apartment.
Our conclusion is not altered by the fact that the officers
were able to see inside the apartment through a window before
entering, and observed several items including some furniture
and personal belongings. Not only did the woman identifying
11
herself as the landlord inform the officers that Naughton had
told her that he had removed what belongings he wanted, but the
officers also saw that the apartment was “in disarray” and
“dirty.” See United States v. Harrison, 689 F.3d 301, 311 (3d
Cir. 2012) (observing that the fact that the inside of a house
was dilapidated or “trashed,” in conjunction with a “rundown”
exterior, provided probative evidence of abandonment).
The totality of the circumstances therefore supported the
district court’s determination that the officers had a
reasonable basis for concluding that Naughton had abandoned his
tenancy, thereby permitting the officers to enter the apartment
without a search warrant and without Naughton’s consent.
Accordingly, we hold that the district court did not err in
denying Naughton’s motion to suppress the items seized during
the June search.
ii.
Naughton next argues that the district court erred in
refusing to suppress the firearm and ammunition seized during
the September search of the apartment, which the police entered
based on the information they received in the anonymous
telephone call. Citing Kerman v. City of New York, 261 F.3d
229, 236 (2d Cir. 2001), Naughton contends that because the “911
call” and the surrounding circumstances did not manifest any
indicia to support the reliability of the caller’s statement,
12
the officers were not justified in entering his apartment
without a warrant.
Although the government contends that the officers properly
entered the apartment to investigate the report of imminent harm
to a victim, the government alternatively maintains that we need
not decide this issue because the admission of the seized
firearm and ammunition was harmless beyond a reasonable doubt.
See Chapman v. California, 386 U.S. 18, 24 (1967). We agree
with the government’s harmless error analysis.
We will assume, without deciding, that the September search
violated Naughton’s Fourth Amendment rights. Before we may
conclude that a constitutional error was harmless beyond a
reasonable doubt, we must determine based on the entire record
that the error “did not contribute” to the defendant’s
convictions. United States v. Holness, 706 F.3d 579, 598 (4th
Cir. 2013) (citation omitted); see also United States v. Abu
Ali,
528 F.3d 210, 256 (4th Cir. 2008) (we must “be able to say
with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error”) (citation omitted).
This standard is more rigorous than determining whether the
evidence was sufficient to support the convictions in the
absence of the erroneously admitted evidence.
Holness, 706 F.3d
at 598.
13
The record before us contains overwhelming evidence
detailing Naughton’s use of firearms during the course of his
sex trafficking operation, rendering the admission of the
firearm and ammunition harmless beyond a reasonable doubt.
Several victim prostitutes involved in Naughton’s sex
trafficking enterprise testified against him, and most of these
victims described Naughton’s regular use of firearms, including
both a handgun similar to the one seized during the September
search as well as a larger machine gun.
These victims stated that Naughton routinely possessed a
firearm in his waistband, in the console of his car, in the
trunk of his car, and in his apartment. One victim related that
Naughton kept a firearm with him “at all times.” Also, multiple
victims described incidents in which Naughton had used a gun in
their presence.
One victim testified regarding an incident in which
Naughton carried a machine gun into a room and set it down on
the dresser. According to that witness, Naughton had stated
that the gun was “for silly bitches like” her, causing her to
believe that he would kill her if she tried to leave. Another
victim identified a machine gun in a photograph, indicating that
Naughton had maintained possession of the gun in her presence.
The evidence also included a video and numerous photographs
depicting Naughton brandishing firearms, including both handguns
14
and machine guns. In addition, the government introduced into
evidence audio recordings in which Naughton referred to his use
of firearms in relation to his sex trafficking enterprise.
In light of this voluminous evidence linking Naughton’s use
of firearms to his sex trafficking operation, we conclude that
the handgun and ammunition displayed at the trial, which were
seized in the September search, could not have affected the
jury’s ultimate findings of guilt. Although the government
referred to the firearm and ammunition during closing arguments,
these references were minor in relation to the overwhelming
testimonial and photographic evidence. Therefore, we hold that
any error resulting from the admission of evidence seized in the
September search was harmless beyond a reasonable doubt.
B.
Finally, we address Naughton’s challenge to his conviction
under count 2, for brandishing a firearm in furtherance of a
crime of violence, in violation of Section 924(c). This
conviction was based on the predicate offense of conspiracy to
commit sex trafficking by force, fraud or coercion, in violation
of Section 1594(c). Naughton contends that this predicate
offense does not qualify categorically as a crime of violence
and that, therefore, we should vacate his conviction on the
brandishing charge.
15
In response, the government argues that conspiracy to
commit sex trafficking qualifies as a crime of violence under
Section 924(c), because the crime necessarily involves a grave
risk that a defendant or others will use physical force against
the victims of the crime. We disagree with this argument, which
is foreclosed by our recent decision in United States v.
Fuertes, Nos. 13-4755, 13-4931, 2015 U.S. App. LEXIS 14475 (4th
Cir. Aug. 18, 2015). 2
As an initial matter, we observe that Naughton’s objection
in the district court relating to count 2 was limited to his
motion for judgment of acquittal challenging the sufficiency of
the evidence. As we explained in Fuertes, such a motion does
not preserve a purely legal argument such as the one presented
here. See Fuertes, 2015 U.S. App. LEXIS 14475, at *21-22.
Accordingly, we review for plain error Naughton’s challenge to
his conviction under count 2. Id. (citing United States v.
Tillery,
702 F.3d 170, 175 (4th Cir. 2012)). To prevail under
2 The government also asserts that Naughton waived his
argument regarding count 2, because his own proposed jury
instruction assumed that conspiracy to commit sex trafficking
qualified as a crime of violence. We disagree. Waiver is “the
intentional relinquishment or abandonment of a known right.”
United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014)
(citation omitted). In the context of this case, Naughton’s
proposed jury instruction did not qualify as the identification
of an issue, followed by explicit withdrawal of that issue, so
as to constitute waiver. See
id.
16
the plain error standard of review, Naughton must show that the
district court erred, that the error was “clear or obvious,
rather than subject to reasonable dispute,” that the error
affected Naughton’s substantial rights, and that the error
“seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Marcus,
560 U.S. 258, 262 (2010).
We therefore turn to address the issue whether the district
court erred in concluding that conspiracy to commit sex
trafficking, in violation of 18 U.S.C. § 1594(c), qualifies as a
crime of violence under 18 U.S.C. § 924(c). Section 1594(c)
establishes a crime for conspiracy to violate 18 U.S.C. § 1591.
Section 1591 generally prohibits an individual from affecting
interstate commerce by enticing, providing, obtaining,
recruiting, harboring, transporting, or maintaining a person, or
benefitting from such conduct, by “means of force, threats of
force, fraud, coercion, or any combination of such means . . .
to cause the person to engage in a commercial sex act.”
§ 1591(a) (emphasis added).
As relevant to this case, to prove a conviction under
Section 924(c), the government needed to show that Naughton
knowingly possessed, used, carried, or brandished a firearm in
furtherance of a crime of violence. Under the definition in
Section 924(c), a “crime of violence” is a felony that
17
(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another [the force clause], or
(B) that by its nature, involves a substantial risk
that physical force against the person or property of
another may be used in the course of committing the
offense [the residual clause].
18 U.S.C. § 924(c)(3).
Our inquiry whether the predicate offense qualifies as a
crime of violence does not permit our review of the conduct
underlying Naughton’s conviction, but allows us to consider only
“the statutory definition of the [] crime and the fact of
conviction to determine whether the conduct criminalized by the
statute, including the most innocent conduct, qualifies as a
‘crime of violence.’” United States v. Royal, 731 F.3d 333,
341-42 (4th Cir. 2013). If any one of the available means of
violating the statute is non-violent, under the categorical
approach the offense is not a crime of violence within the
meaning of the force clause irrespective of the defendant’s
actual conduct. 3 Descamps v. United States,
133 S. Ct. 2276,
2285-86 (2013); Fuertes,
2015 U.S. App. LEXIS 14475, at *23-25.
Similarly, if we conclude that the elements of conspiracy to
3
The categorical approach applies only to “indivisible
statutes.” Under Descamps v. United States, 133 S. Ct. 2276
(2013), a statute is divisible only if it “comprises multiple,
alternative versions of the crime” by “list[ing] multiple,
alternative
elements.” 133 S. Ct. at 2284-85. As we explained
in Fuertes, Section 1591 is an indivisible statute. Fuertes,
2015 U.S. App. LEXIS 14475, at *24.
18
commit sex trafficking do not involve a substantial risk that
the perpetrator of the crime will use physical force against the
victim, then the crime categorically does not qualify as a crime
of violence under the residual clause. See Fuertes, 2015 U.S.
App. LEXIS 14475, at *26-29.
In Fuertes, we held that because the crime of sex
trafficking under Section 1591 can be committed by force or by
fraud or coercion, the offense does not have “as an element the
use, attempted use, or threatened use of physical force”
required by the force clause. Id. at *25-26. We also held that
sex trafficking does not qualify as a crime of violence under
the residual clause, because in the ordinary case, a
perpetrator’s possible conduct under the elements of the offense
includes several different ways that the crime could be
committed in a non-violent manner. See
id. at *28-31, 31 n.6.
Although the predicate offense at issue here involves a
conspiracy to commit sex trafficking, rather than the actual
crime of sex trafficking, that distinction does not alter our
analysis or our application of the holding in Fuertes, because a
conspiracy cannot be “divorced from its violent [or nonviolent]
objective.” See United States v. White, 571 F.3d 365, 373 (4th
Cir. 2009) (holding that conspiracy to commit robbery with a
dangerous weapon involves a violent object of the conspiracy and
is a crime of violence under Section 924(e)). Therefore, we
19
hold that the district court erred in determining that
conspiracy to commit sex trafficking qualified as a crime of
violence under Section 924(c).
We also conclude, as explained in Fuertes, that this error
was plain. Fuertes, 2015 U.S. App. LEXIS 14475, at *29-31.
With respect to the force clause, the Supreme Court’s holding in
Descamps made clear that because one of the means of violating
Section 1591 is non-violent, the offense does not qualify as a
crime of violence.
Descamps, 133 S. Ct. at 2285-86; see also
Fuertes,
2015 U.S. App. LEXIS 14475, at *29-30 (explaining that
although Descamps had not been decided at the time of trial, the
error became plain on appeal in accordance with Henderson v.
United States,
133 S. Ct. 1121, 1130 (2013)). Similarly, with
respect to the residual clause, because sex trafficking can be
committed by force, fraud, or coercion, the offense plainly does
not categorically involve a substantial risk that the defendant
will use physical force in the course of committing the offense. 4
Fuertes,
2015 U.S. App. LEXIS 14475, at *29-31, 31 n.6.
4
The parties in this case submitted supplemental briefing
on the potential impact of Johnson v. United States, 135 S. Ct.
2551 (2015), in which the Supreme Court held that the residual
clause set forth in 18 U.S.C. § 924(e)(2)(B) was
unconstitutionally vague. The residual clause struck down in
Johnson contains similar but not identical language to the
residual clause at issue in the present case under 18 U.S.C.
§ 924(c)(3)(B). However, we need not examine whether the
holding in Johnson impacts the constitutionality of the residual
(Continued)
20
Finally, we hold that this error affected Naughton’s
substantial rights as well as the fairness, integrity, and
public reputation of judicial proceedings, because Naughton
received an additional sentence of 84 months’ imprisonment based
on his erroneous conviction under Section 924(c). See Fuertes,
2015 U.S. App. LEXIS 14475, at *31-32. Accordingly, because
conspiracy to commit sex trafficking does not categorically
qualify as a crime of violence, we vacate Naughton’s conviction
under Section 924(c), and remand the remaining convictions to
the district court for resentencing.
III.
For these reasons, we affirm Naughton’s convictions on
counts 1, 4, 5, 6, 7, 8, 9, 10, 12, 13, and 16. We vacate
Naughton’s conviction on count 2, for brandishing a firearm
during a crime of violence in violation of 18 U.S.C. § 924(c).
clause here, because we invalidate application of that clause on
the separate basis that a perpetrator’s possible conduct under
the elements of sex trafficking includes several different ways
that the crime could be committed in a non-violent manner. See
Fuertes, 2015 U.S. App. LEXIS 14475, at *26-27 n.5 (citing the
principle of constitutional avoidance in accordance with
Ashwander v. Tenn. Valley Auth.,
297 U.S. 288, 346-48 (1936)).
21
Accordingly, we remand the remaining convictions to the district
court for resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
22
