IKUTA, Circuit Judge:
Maurice Lerome Smith appeals several sentencing enhancements that he received in connection with his conviction for sex trafficking of children by force, fraud, or coercion under 18 U.S.C. § 1591(a) and (b)(1). We affirm.
Smith was the owner of a San Diego-area window washing company. But for many years, he had also been involved in a much darker business: running a prostitution ring. In October 2009, a 17-year-old girl named M.S. contacted Smith by email, looking for a job. M.S. was homeless and living in a tent behind a motorcycle junkyard where she worked. M.S. knew Smith owned a window washing company, but
Several months later, in January 2010, M.S. moved in with Smith and began having sexual relations with him. Shortly thereafter, Smith brought a woman named Michelle back to the house, who asked about M.S.'s age, pointedly commenting on how young she looked. In reaction to Michelle's question, Smith punched Michelle in the face, knocking her unconscious. M.S. then learned that Smith was a pimp. Smith told M.S., "Bitch, I own you," and immediately forced her to work as a prostitute in his ring.
Smith had Michelle train and accompany M.S. on her initial assignments to San Diego hotels, telling M.S. that Michelle's "got this, she'll show you, she's been doing it a really long time." Michelle subsequently accompanied M.S. to hotels and posted some internet ads for her. Smith had several other women working as prostitutes for him at that time, but Michelle was his "bottom bitch," defined by a government expert as the pimp's most trusted prostitute, responsible for recruiting, collecting money, and possibly disciplining other prostitutes.
Smith regularly beat and threatened M.S. from February 2010 onward, and M.S. tried to leave him five or six times. Whenever M.S. tried to leave, Smith's tactics varied between cajoling her to stay, using statements like "no, baby, I love you, don't leave, you don't need to leave, we can work this out, it's not that big of a deal," to threatening her, using statements like "bitch, you ain't going nowhere." If M.S. pushed the issue, "there were physical altercations." Although Smith did let M.S. go in July 2010, the reprieve was shortlived. In September 2010, Smith saw M.S. walking on the street and demanded that she get into his car or she would be "in pieces in the trunk." Shortly after Smith forced M.S. to resume working as a prostitute for him, however, M.S. started a noisy dispute with a client in hopes that he would call the police. The client did so, and once the police arrived, M.S. told them she had been forced to work for Smith.
After his arrest, indictment and trial, Smith was convicted by a jury of sex trafficking of children by force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a) and (b)(1).
The pre-sentence report identified Smith's base offense level as 34, as prescribed by § 2G1.3(a)(1) of the Sentencing Guidelines for violations of 18 U.S.C. § 1591(b)(1).
In determining whether the district court committed procedural error, we review the district court's interpretation of the Sentencing Guidelines de novo and its factual findings for clear error. See United States v. Swank, 676 F.3d 919, 921 (9th Cir.2012).
We begin with Smith's challenge to the enhancement for undue influence under § 2G1.3(b)(2)(B). This section provides for a two-level upward adjustment if a participant "unduly influenced a minor to engage in prohibited sexual conduct." Id. Smith argues that this two-level increase for undue influence under § 2G1.3(b)(2)(B) was impermissible double-counting because the court calculated a base offense level of 34 under § 2G1.3(a)(1) for his violation of § 1591(b)(1), which has as an element that the defendant used "force, fraud, or coercion." Because a person using "force, fraud, or coercion" against a minor would necessarily have "unduly influenced" the minor, Smith asserts, the § 2G1.3(b)(2)(B) enhancement impermissibly punished him for conduct already included in the base offense level.
As a general rule, it is appropriate for a court to consider all applicable Guidelines provisions in calculating the guidelines range for an offense. In particular, the Sentencing Guidelines contemplate that courts will apply all applicable specific offense characteristics to enhance the base offense level. See § 1B1.1(a)(2); see also United States v. Williams, 693 F.3d 1067, 1074 (9th Cir.2012). Indeed, the Guidelines instructions direct a court to apply provisions even from different chapters of the Guidelines Manual in calculating the points applicable to a single offense, because "[a]bsent an instruction to the contrary,
In accord with these instructions, we have long held that "the Sentencing Commission understands double counting and `expressly forbids it where it is not intended.'" United States v. Rosas, 615 F.3d 1058, 1065 (9th Cir.2010) (quoting United States v. Reese, 2 F.3d 870, 894 (9th Cir. 1993)); see also United States v. Vizcarra, 668 F.3d 516, 518 (7th Cir.2012) (under § 1B1.1 cmt. 4(B), double counting is the "default rule"). As the Guidelines Manual demonstrates, the Commission has in fact done this. Within any offense guideline, for example, if a single specific offense characteristic subsection lists alternative adjustments, district courts are to pick "only the one that best describes the conduct." § 1B1.1 cmt. 4(B). The Guidelines Manual also spells out numerous instances in which a particular provision should not be applied to the same conduct as another provision. See Vizcarra, 668 F.3d at 521.
We have also inferred that the Commission would not intend courts to apply a Guidelines provision that would "increase a defendant's punishment on account of a kind of harm that has already been fully accounted for by application of another part of the Guidelines." United States v. Holt, 510 F.3d 1007, 1011 (9th Cir.2007). However, "when each invocation of the behavior serves a unique purpose under the Guidelines," we conclude that the Commission "authorized and intended" the cumulative application of both provisions. Id.; see, e.g., United States v. Stoterau, 524 F.3d 988, 1001 (9th Cir.2008) (applying two enhancements to same conduct permissible because each accounted for a "different aspect of the harms" caused by the defendant's conduct); United States v. Thornton, 511 F.3d 1221, 1228 (9th Cir. 2008) (applying two enhancements to same conduct permissible because each "stemmed from separate concerns").
We have routinely concluded that two Guidelines provisions serve unique purposes when applied cumulatively.
This precedent squarely forecloses Smith's claim that the district court engaged in impermissible double counting. Because having "undue influence" on a victim under § 2G1.3(b)(2)(B) may involve acts that do not constitute "force, fraud, or coercion" encompassed in § 2G1.3(a)(1), the two provisions serve unique purposes under the Guidelines and may both be applied to the same conduct. Here, the district court could reasonably determine that Smith "unduly influenced a minor to engage in prohibited sexual conduct," § 2G1.3(b)(2), by preying on M.S.'s vulnerability. Smith took steps aimed at making M.S. dependent on him: knowing she was homeless and lacking family support or financial resources, he invited her to move in with him, gave her a job, and began a sexual relationship with her. These predatory acts compromised the voluntariness of her ability to resist Smith's demands that she work as a prostitute for him. See United States v. Brooks, 610 F.3d 1186, 1199 (9th Cir.2010); see also § 2G1.3 cmt. 3(B) ("Undue influence" is defined as activity that "compromise[s] the voluntariness of the minor's behavior"). Yet, these acts do not amount to "force" or "fraud."
Accordingly, we conclude that the district court did not err in applying a two-point enhancement for "undue influence" under § 2G1.3(b)(2) when calculating Smith's guidelines range.
We now turn to Smith's claim that the district court erred in imposing an enhancement under § 3B1.1(c). Under § 3B1.1(c), a two-level upward adjustment is warranted if the defendant is an "organizer, leader, manager, or supervisor in any criminal activity." The notes to § 3B1.1(c) provide that a defendant must have overseen "one or more other participants" to qualify for the upward adjustment, see § 3B1.1 cmt. 2, and define "participant" as "a person who is criminally responsible for the commission of the offense, but need not have been convicted."
We have held that "[a] court may impose this [§ 3B1.1(c)] enhancement if there is evidence that the defendant exercised some control over others involved in the commission of the offense or was responsible for organizing others for the purpose of carrying out the crime." United States v. Whitney, 673 F.3d 965, 975 (9th Cir.2012) (internal quotation marks omitted). Any person who knowingly abets the defendant's conduct qualifies as a "participant." See United States v. Cyphers, 130 F.3d 1361, 1363 (9th Cir.1997); see also United States v. Bisong, 645 F.3d 384, 397-98 (D.C.Cir.2011).
There was ample evidence before the district court that Michelle knowingly abetted Smith's § 1591 offense. It is clear that Smith assigned Michelle, his "bottom bitch," to groom M.S. for her prostitution responsibilities, and that Michelle undertook a number of steps in doing so. Under Cyphers, it is immaterial that Michelle did not herself commit the same underlying offense as Smith, so long as she was a knowing accessory to his crime. 130 F.3d at 1363-64. Nor was it necessary for the government to prove that Michelle was also coerced by Smith, so long as she "knew and participated in the [illegal] practices at the direction of the defendant," id. at 1363, which was easily established by M.S.'s testimony. Because Michelle knowingly abetted Smith's child sex trafficking offense, she qualified as a "participant" under § 3B1.1, and therefore Smith was "responsible for organizing [Michelle] for the purpose of carrying out" that criminal act. Whitney, 673 F.3d at 975. Accordingly, the district court did not err in imposing the two-level adjustment under § 3B1.1(c).
18 U.S.C. § 1591(b) provides that "[t]he punishment for an offense under subsection (a) is — (1) if the offense was effected by means of force, threats of force, fraud, or coercion... or by any combination of such means ... by a fine under this title and imprisonment for any term of years not less than 15 or for life; or (2) if the offense was not so effected, and the person recruited, enticed, harbored, transported, provided, or obtained had attained the age of 14 years but had not attained the age of 18 years at the time of such offense, by a fine under this title and imprisonment for not less than 10 years or for life."