Filed: Jan. 14, 2013
Latest Update: Mar. 26, 2017
Summary: in United States v. Hall, 434 F.3d 42 (1st Cir., 2008) (holding that remand is necessary only if the sentence, imposed resulted from an incorrect application of the Sentencing, Guidelines, and the error was not harmless (emphasis added), (internal quotation marks omitted));offenses of conviction.
United States Court of Appeals
For the First Circuit
Nos. 10-1781, 11-1055
UNITED STATES OF AMERICA,
Appellee,
v.
DARRYL TAVARES, a/k/a Young Stallion, a/k/a Stallion,
Defendant, Appellant.
No. 10-2495
UNITED STATES OF AMERICA,
Appellee,
v.
EDDIE JONES, a/k/a Young Indian,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Howard, Ripple,* and Lipez,
Circuit Judges.
*
Of the Seventh Circuit, sitting by designation.
William A. Hahn for appellant Darryl Tavares and Robert R.
Herrick for appellant Eddie Jones.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
January 14, 2013
-2-
RIPPLE, Circuit Judge. After a jury trial,
Darryl Tavares and Eddie Jones were both convicted under 18 U.S.C.
§ 371 of conspiracy to knowingly transport an individual in
interstate commerce with the intent that such individual engage in
prostitution, in violation of 18 U.S.C. § 2421 (Count One).
Mr. Tavares was also convicted of knowingly transporting a minor,
B.B., across state lines to engage in prostitution, in violation of
18 U.S.C. § 2423(a) (Count Nine), and of sex trafficking of a
child, T.B., in violation of 18 U.S.C. § 1591 (Count Ten).
Mr. Jones also was convicted of aiding and abetting the
transportation of a minor, B.B., across state lines to engage in
prostitution, in violation of 18 U.S.C. § 2423(a) (Count Nine), and
of knowingly transporting a minor, K.S., in interstate commerce
with the intent that she engage in prostitution, in violation of 18
U.S.C. § 2423(a) (Count Fourteen). The district court sentenced
both Mr. Tavares and Mr. Jones to 300 months’ imprisonment and to
three years’ supervised release. They have timely appealed their
convictions and sentences on various grounds.1 For the reasons set
forth in this opinion, we affirm the judgments of the district
court.
1
The jurisdiction of this court was based on 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742.
-3-
I
BACKGROUND
On May 16, 2007, a grand jury indicted Mr. Tavares,
Mr. Jones and four other individuals for various offenses involving
the transportation and trafficking of individuals for
prostitution.2 They were indicted for conspiring to knowingly
transport individuals in interstate commerce with the intent that
those individuals engage in prostitution. In addition, Mr. Tavares
was charged with two counts of sex trafficking of children, and
Mr. Jones was charged with one count of transporting a minor to
engage in prostitution. The four other individuals pleaded guilty;
Mr. Tavares and Mr. Jones chose to go to trial.
At trial, the Government established that Mr. Tavares and
Mr. Jones were pimps who, over several years, prostituted young
women, including high-school-age girls. The Government presented
five principal witnesses, women who had worked as prostitutes for
Mr. Tavares, Mr. Jones or both. Four of these five women worked
for one or both defendants as prostitutes when they were under
eighteen.
The Government’s evidence demonstrated that Mr. Tavares
and Mr. Jones worked closely together. The testimony recounted one
incident in which Mr. Tavares and Mr. Jones, along with an
2
The four co-defendants are Shaun Leoney, Reuben Porcher,
Aaron Brooks and Trueheart Peeples.
-4-
associate, took a young girl from her home in Maine to become a
prostitute in Boston, Massachusetts. Travel such as this was
common; another woman testified that she had worked for Mr. Jones
as a prostitute in several cities along the East Coast (Boston,
Massachusetts, Atlantic City, New Jersey, Philadelphia,
Pennsylvania and Washington, D.C.). The Government also presented
evidence that Mr. Tavares and Mr. Jones had used violence and
coercion against their victims. For instance, on one occasion,
Mr. Tavares took a young woman to another pimp, assisted in
assaulting her and then offered to take her back with him.
Mr. Tavares and Mr. Jones were sentenced separately.
Mr. Tavares received an “organizer or leader” enhancement. The
district court then imposed an above-guidelines sentence of 300
months’ imprisonment, to be followed by three years’ supervised
release. The district court determined that Mr. Jones was a career
offender and imposed a within-guidelines sentence of 300 months’
imprisonment, to be followed by three years’ supervised release.
II
DISCUSSION
Mr. Tavares and Mr. Jones were tried together, but
sentenced separately. Their consolidated appeal contains only one
common issue. Thus, for clarity and ease of discussion, we shall
address first their joint trial on the merits, beginning with the
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common issue and then turning to each defendant’s claims. Finally,
we shall discuss their respective sentencing claims.
A. Trial on the Merits
1. The Common Issue: Voir Dire
Mr. Tavares and Mr. Jones each have nicknames.
Mr. Tavares’s is “Stallion” or “Young Stallion”; Mr. Jones’s is
“Young Indian.” These nicknames were included on the docket sheet
posted outside of the courtroom during jury selection.
Voir dire of the prospective jurors lasted three days.
At the beginning of the proceeding, the district court informed the
jurors of the nature of the charges. The court then made some
general inquiries to ascertain if any member of the venire had read
or seen anything about the case or if any member was related to or
knew the attorneys or witnesses. The court then pointedly
admonished the prospective jurors that they were “under an order
not to talk about the case” and not to “guess what the case is
about beyond what” the court had told them.3
The court then undertook an individual examination of
each prospective juror. Counsel were permitted an allotted time to
question each prospective juror. During that questioning, defense
counsel often inquired about the jurors’ views of pimps and
prostitutes, and the relationship between the two. Defense counsel
questioned some prospective jurors concerning their views about
3
R.292 at 23.
-6-
prostitutes who were minors. During this process, three
prospective jurors reported that some members of the jury pool had
discussed the district court’s instructions about the case and the
significance of Mr. Tavares’s and Mr. Jones’s nicknames in the jury
room. They also said that there had been speculation about the
nature of the case. They reported that several prospective jurors
had laughed and joked about the nicknames, including one comment
that the nicknames might indicate gang membership.
After listening to the jurors’ accounts and considering
the argument of counsel, the district court denied Mr. Tavares’s
motion to disqualify all jurors who had been in the jury room since
the first report of discussion about the case and the nicknames.
Mr. Tavares and Mr. Jones then asked to question prospective jurors
who already had been preliminarily qualified. This request also
was denied; the district court stated that it was not going to
order the return of all preliminarily qualified jurors for
additional questioning. It then explained that it was “fairly
confident[] that all that was involved was speculation about what
[the court’s] instructions were and speculation about what [the
defendants’] nicknames meant.”4 The court also noted that, in any
event, the nicknames would be revealed at trial and that the early
revelation of the nicknames “pales [in comparison] to what [defense
4
R.294 at 75.
-7-
counsel] told the jurors” about the defendants’ work as pimps.5
When subsequent prospective jurors were called for
examination, the district court asked each potential juror whether
he or she had discussed the case. One prospective juror, who
admitted to joking about the nicknames, was challenged for cause
and dismissed. After empaneling the jury, the court gave a general
instruction to the jurors not to discuss the case with anyone,
including each other, until all evidence was presented. However,
no specific instruction was given about the nicknames or the
earlier discussions.
Mr. Tavares and Mr. Jones submit that the district
court’s response to the discussion of the defendants’ nicknames was
inadequate. They maintain that the court committed reversible
error when it refused to permit questioning of the entire jury
pool. Alternatively, they contend that, upon learning of the
discussion, the court should have dismissed the entire jury pool.
The parties variously cast the problem presented here as
one of juror taint on the theory that prospective jurors were
exposed to material outside the record, or of premature
deliberation because prospective jurors speculated among themselves
about the significance of facts that eventually would be before
them, if they were selected for service on the chosen jury.
Neither of these characterizations is a precise description of the
5
Id. at 76.
-8-
rather unique situation that confronted the district court. In any
event, choosing between these characterizations is not an essential
part of the analytical task facing a district court, or this court,
when dealing with juror misconduct. Our cases make clear that when
faced with a non-frivolous allegation of any sort of juror
misconduct, the district court must engage in a two-step analysis.
See United States v. Diaz, 597 F.3d 56, 62-63 (1st Cir. 2010);
United States v. Tejeda,
481 F.3d 44, 52 (1st Cir. 2007). First,
the court must determine whether misconduct occurred. If no
misconduct occurred, no further action is required. “[M]isconduct
allegations that are frivolous . . . do not trigger any duty of
inquiry and do not require that a hearing be held.” United States
v. Mikutowicz,
365 F.3d 65, 74 (1st Cir. 2004) (alterations in
original) (internal quotation marks omitted). On the other hand,
if any misconduct did occur, the court must proceed to “assess[]
the magnitude and extent of any prejudice caused” and, if
necessary, take remedial measures. Tejeda, 481 F.3d at 52. If no
curative measures appear adequate, the court may grant a timely
motion for mistrial. Id.
We review for abuse of discretion a district court’s
handling of juror misconduct. Diaz, 597 F.3d at 62.6 The
6
We cannot accept Mr. Tavares’s contention that the standard
of review is de novo under United States v. Jadlowe, 628 F.3d 1, 14
(1st Cir. 2010). Jadlowe involved review of the district court’s
instruction to the jury, not its response to potential juror
misconduct. Id. at 15.
-9-
fact-specific and often delicate task of assessing such situations,
which often requires the assessment of witness credibility,
counsels that a district court must “enjoy broad discretion in
addressing potential juror misconduct.” Id. Therefore, “normally
we will not reverse unless the judge’s choice among the various
avenues available was patently unreasonable.” United States v.
Lemmerer, 277 F.3d 579, 591 (1st Cir. 2002).
Here, our colleague in the district court followed the
process of assessment prescribed by our case law. The court
undertook an examination of the rather unique circumstances
surrounding the incident. The court realized that the misconduct
took place at a very early stage of the proceedings and also gave
appropriate weight to the fact that the defendants’ nicknames would
indeed be before the yet-to-be selected jury as evidence during
trial. Finally, the court determined that any harm caused by the
discussion of the nicknames had been negated significantly by
defense counsel’s own statements to jurors about Mr. Tavares’s and
Mr. Jones’s activities. Having made this assessment, the district
court determined that admonishing the empaneled jury not to discuss
the case or to form ultimate conclusions until all evidence had
been presented was the appropriate course.
On the basis of our study of the trial transcript, we
cannot accept the contention that the district court was obliged to
conduct a more extensive inquiry. While not protracted, the
-10-
inquiry here was measured but sufficiently thorough. The court
observed and evaluated firsthand the potential jurors’ reports of
the jury-room discussions. It took note of the conversations’
content, the point in the proceeding when they took place and the
fact that the matter discussed by the prospective jurors would be
covered thoroughly at trial. The court then concluded that any
harm from the violation of its initial instruction not to speculate
about the trial could be cured by an appropriate cautionary
instruction. This approach was certainly well within the options
from which a thoughtful district court could be expected to choose,
and we shall not second-guess the course taken by the court here.
2. Issues Raised by Mr. Tavares
Mr. Tavares raises several challenges to his convictions.
We address these count by count.
a. Conspiracy (Count One)
Count One of the indictment charged Mr. Tavares with
conspiring to knowingly transport an individual in interstate
commerce, intending that she engage in prostitution. In support,
the indictment alleged twenty-six overt acts taken in furtherance
of the conspiracy. Among these was Overt Act J, which alleged that
“[i]n or about February 2004, after assisting in the assault of
T.B. by covering her head with a garbage bag and securing it with
duct tape, Darryl TAVARES negotiated with another male to have T.B.
-11-
return to work for him as a prostitute.”7
T.B., a young woman who worked as a prostitute at various
times for Mr. Tavares and for another pimp named “Jungle,”8 was a
witness at trial. She testified about an incident when Mr. Tavares
brought her to her then-pimp, Jungle. She said Mr. Tavares was
with Jungle when “they tied [her] hands behind [her] back with
rope.”9 She further testified that while Jungle put the bag over
her head, he asked Mr. Tavares for help, but, because of the bag,
she could not hear or see who participated in her subsequent
beating. After the assault, Mr. Tavares offered to take T.B. back,
but Jungle refused because T.B. had to work for him first.
Mr. Tavares’s counsel extensively cross-examined T.B.
i. Admission of T.B.’s Testimony
Although Mr. Tavares does not appeal the admission of
evidence concerning the other twenty-five overt acts, he does
challenge the admission of T.B.’s testimony about Overt Act J. He
challenges T.B.’s testimony only as irrelevant under Rule 401 of
the Federal Rules of Evidence and unfairly prejudicial under Rule
403. We shall address these arguments in turn.10
7
R.1 at 3.
8
Jungle is an unindicted co-conspirator.
9
R.297 at 81.
10
At trial, Mr. Tavares grounded his objection to T.B.’s
testimony in Federal Rules of Evidence 401, 403 and 404(b). Before
us, he has abandoned his Rule 404(b) objection.
-12-
We review the district court’s admission of evidence for
abuse of discretion. United States v. Upton, 559 F.3d 3, 15 (1st
Cir. 2009). Under Federal Rule of Evidence 401, “evidence is
relevant if it has any tendency to make a fact more probable or
less probable than it would be without the evidence[] and the fact
is of consequence in determining the action.”
Mr. Tavares objected at trial, and presses here on
appeal, that T.B.’s testimony was not relevant and is therefore
inadmissible because it primarily inculpated Jungle.11 The
Government submitted at trial, and the district court agreed, that
T.B.’s testimony was relevant because it explained the relationship
between Mr. Tavares and T.B., a fact germane to whether Mr. Tavares
transported T.B. for prostitution. Further, Mr. Tavares’s offering
to take T.B. off Jungle’s hands suggests that she worked for him as
a prostitute, also germane to whether Mr. Tavares trafficked her
for sex (Count Ten). We certainly cannot discern any abuse of
discretion in the district court’s ruling. The events to which
T.B. testified certainly have “a tendency to make a fact [that
Mr. Tavares transported T.B. and trafficked her for sex] more
probable than it would be without the evidence.” Fed. R. Evid.
401. Furthermore, whether Mr. Tavares transported her and
prostituted her “is of consequence in determining the action.” Id.
Federal Rule of Evidence 403 provides that although
11
See, e.g., R.297 at 4-5.
-13-
relevant, evidence may be excluded “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.”
We do not disturb the district court’s balancing of probative value
and risk of unfair prejudice absent “extraordinarily compelling
circumstances.” Freeman v. Package Mach. Co., 865 F.2d 1331, 1340
(1st Cir. 1988). We see no such extraordinary circumstances here.
In Mr. Tavares’s view, even if T.B.’s testimony is
relevant, it still should have been excluded because its probative
value is substantially outweighed by the risk of unfair prejudice.
According to Mr. Tavares, prostitution and sex trafficking of
children are not violent crimes. Thus, he concludes, any mention
of violence inherently poses a risk of prejudice substantially
outweighing probative value and inviting jurors to decide the case
purely on emotion. We accept neither Mr. Tavares’s premise nor his
conclusion. Violence, abuse and other forms of human degradation
are part and parcel of sex trafficking. It is not at all
surprising that evidence of such acts is offered to establish a
conspiracy to engage in sex trafficking. Moreover, evidence of
these violent acts was particularly probative of the defendants’
relationship with the women because it directly demonstrated the
control that the defendants exercised over the women in their
prostitution operation. Specifically, with respect to Mr. Tavares,
the evidence showed that the violent episode also entailed
negotiations with Jungle to get T.B. back to work for him. The
-14-
testimony was also relevant to and probative of Mr. Tavares’s
knowledge and intent with respect to Count Ten, charging him with
recruiting and transporting T.B. to engage in a commercial sex act.
Here, the district court considered Mr. Tavares’s
arguments several times and concluded that the probative value of
T.B.’s testimony was not substantially outweighed by any risk of
unfair prejudice. That decision was certainly among the options
from which a reasonable judge could be expected to choose. The
record contains no basis that would justify our overturning the
district court’s decision.
ii. Prejudicial Variance
T.B.’s testimony concerning the incident with Jungle
indisputably is at variance with the language of the indictment and
the Government’s identical proffer to the district court. The
Government expected T.B. to testify that Mr. Tavares put the
plastic bag over her head. However, T.B. testified that Jungle,
not Mr. Tavares, put the bag over her head. Her testimony
otherwise conformed to the indictment; she indicated that
Mr. Tavares “assist[ed] in [her] assault” and “negotiated with
another male [Jungle] to have T.B. return to work for him as a
prostitute.”12
“Not every variance calls for reversal.” United States
v. Seng Tan, 674 F.3d 103, 110 (1st Cir. 2012). Mr. Tavares must
12
R.1 at 3.
-15-
show that the variance prejudiced him. Id. Prejudice in this
context is found when, for example, “the variance . . . le[ft the
defendant] so in the dark about the charge against h[im] that []he
could not prepare a defense or plead double jeopardy to stop a
second prosecution for the same crime.” Id.
Here, Mr. Tavares faces an additional hurdle. Because he
did not object in the district court to this variance, our review
is for plain error. Id. Thus, Mr. Tavares “must demonstrate that
(1) an error occurred which was (2) clear or obvious and which not
only (3) affected his substantial rights, but also (4) seriously
impaired the fairness, integrity, or public reputation of the
judicial proceedings.” United States v. Savarese, 686 F.3d 1, 12
(1st Cir. 2012).
Mr. Tavares cannot establish any prejudice from the
variance between the indictment’s language and T.B.’s testimony at
trial. Mr. Tavares’s conspiracy conviction did not depend on Overt
Act J being proven. Evidence was admitted concerning the
twenty-five other overt acts charged in the indictment; the
evidence supporting his (and Mr. Jones’s) conviction was
overwhelming. Thus, any error in admitting T.B.’s testimony
concerning Overt Act J was harmless.
The variance between the indictment and T.B.’s testimony
was not prejudicial and affords no basis for reversal.
-16-
b. Transportation of a Minor (Count Nine)
Mr. Tavares was convicted of knowingly transporting a
minor, B.B., in violation of 18 U.S.C. § 2423(a). A great part of
the evidence on this count came from B.B.’s own testimony. In
evaluating the sufficiency of the evidence, we construe the
evidence “in the light most favorable to the jury’s verdict.”
United States v. Alfonzo-Reyes, 592 F.3d 280, 289 (1st Cir. 2010).
At trial, B.B. testified that, when she was seventeen,
Mr. Tavares and Peeples, a co-defendant who pleaded guilty, picked
her up at her high school in Maine. Mr. Tavares and Peeples then
took her to her sister’s home. Mr. Jones was at the home. The
group talked about “[g]oing to Boston to make money.”13
Mr. Tavares, Mr. Jones and B.B. then drove from Maine to
Massachusetts with some other people. B.B. testified that in the
car she was told to pick her future pimp from among Mr. Tavares,
Mr. Jones and another man; she chose Mr. Tavares.
During the ride, B.B. sat on Mr. Tavares’s lap while he
explained the rules of prostitution, including forbidding her from
talking to other pimps and dictating how she should speak to him.
She testified that she did not speak with Mr. Jones at her sister’s
apartment or on the drive to Boston. Immediately upon arrival in
Boston, Mr. Tavares took B.B. to the streets to work as a
prostitute. She worked there for a considerable period of time.
13
R.295 at 40.
-17-
Mr. Tavares raises two challenges to his conviction for
transporting B.B.: insufficient evidence and an erroneous jury
instruction. He contends that the Government did not prove that he
transported B.B. with the intent that she engage in prostitution
and that the Government failed to prove that he knew B.B. was under
eighteen at the relevant time. Mr. Tavares’s assertion that the
Government’s proof of his knowledge of B.B.’s underage status was
insufficient is closely linked to his challenge of the jury
instruction on this count.
i. Sufficient Evidence of Intent
In order to convict Mr. Tavares of transporting B.B., the
Government was required to prove, among other things, that he had
the “intent that [she] engage in prostitution.” 18 U.S.C.
§ 2423(a). This element requires proof that “criminal sexual
activity [was] one of the several motives or purposes . . . not a
mere incident of the trip or trips, but instead was at least one of
the defendant’s motivations for taking the trip in the first
place.” United States v. Ellis, 935 F.2d 385, 390 (1st Cir. 1991)
(alteration in original) (internal quotation marks omitted).
When reviewing the sufficiency of the evidence, we
reverse only if “the evidence, viewed in the light most favorable
to the government, could not have persuaded any trier of fact of
the defendant’s guilt beyond a reasonable doubt.” United States v.
Paradis, 802 F.2d 553, 559 (1st Cir. 1986). We do not weigh
-18-
evidence or assess credibility. See United States v. Downs-Moses,
329 F.3d 253, 261 (1st Cir. 2003).
Mr. Tavares maintains that the Government failed to prove
beyond a reasonable doubt that he transported B.B. with the
requisite intent. According to Mr. Tavares, a jury could not draw
a reasonable inference that he intended that B.B. engage in
prostitution until they had arrived in Boston, i.e., after
transportation was completed. In support, he relies on the fact
that only B.B.’s participation in an escort service, not
prostitution, was discussed explicitly in Maine.
The record shows that the Government met its burden at
trial. The jury reasonably could infer from B.B.’s testimony that
Mr. Tavares’s purpose in bringing her from Maine to Boston was that
she work for him as a prostitute. The discussion about “[g]oing to
Boston to make money” reasonably can be understood as relating to
prostitution. This interpretation is especially justifiable
because Mr. Tavares is an admitted pimp, he picked B.B. up with
another pimp (Peeples) and took her to discuss “mak[ing] money”
with a third pimp (Mr. Jones).
Even disregarding this statement, Mr. Tavares’s conduct
during the ride from Maine to Boston clearly evidenced his intent
in taking the trip. En route from Maine to Boston, Mr. Tavares
instructed B.B. to choose a pimp for whom to work and told her his
rules for the prostitutes working for him. Furthermore, the jury
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was not limited to considering B.B.’s testimony in assessing
Mr. Tavares’s intent. For example, an FBI agent testified that
Mr. Tavares told him that Peeples was B.B.’s sister’s pimp but
Peeples “couldn’t handle both sisters and so they [Mr. Tavares and
Peeples] had made arrangements . . . to bring [B.B.] down to the
Boston area.”14
Mr. Tavares’s contention that no intent reasonably could
be inferred from this evidence is unavailing. The evidence
produced at trial was more than sufficient to prove beyond a
reasonable doubt that Mr. Tavares had the requisite intent at least
during, if not before, transportation.
ii. Sufficient Evidence of “Knowingly”
Mr. Tavares also challenges the sufficiency of his
conviction on Count Nine by contending that the Government failed
to prove beyond a reasonable doubt that he knew B.B. was under
eighteen at the time he transported her. This claim is linked
closely to his contention that the district court erred in
instructing the jury that it could convict him on this count15
without finding that he knew B.B. was under eighteen. Therefore,
we address the instructional issue first.
14
R.299 at 78.
15
Mr. Tavares also challenges the district court’s
instruction for Count Twelve, which involved the same offense with
a different victim and an identical jury instruction. However, Mr.
Tavares was acquitted of Count Twelve, and so we do not address
this claim.
-20-
Title 18 of the United States Code, Section 2423(a)
criminalizes “transportation with intent to engage in criminal
sexual activity.” It provides that
[a] person who knowingly
transports an individual who has
not attained the age of 18 years
in interstate or foreign
c om m e r ce, 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.
Id. The district court instructed the jury that, in order to
convict Mr. Tavares, it had to find that the Government proved
beyond a reasonable doubt that (1) Mr. Tavares knowingly
transported B.B. in interstate commerce, (2) with the intent that
B.B. engage in prostitution and (3) B.B. was under eighteen years
old at the time of the transportation. The district court applied
the “knowingly” requirement only to the act of transportation, not
to the age of the individual transported.
We review de novo claims of legal error in jury
instructions. Figueroa v. Alejandro, 597 F.3d 423, 434 (1st Cir.
2010). Although we have not addressed whether § 2423(a) requires
knowledge of the victim’s underage status, all six circuits to
-21-
consider the issue have concluded that it does not.16
Mr. Tavares, relying on the Supreme Court’s decision in
Flores-Figueroa v. United States, 556 U.S. 646 (2009), urges that
we break with our sister circuits and extend the knowledge
requirement to the victim’s underage status. In Flores-Figueroa,
the Court construed 18 U.S.C. § 1028A(a)(1), which penalizes a
person who “knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person.” The Court
found that the statutory language required applying “knowing” to
two elements: the “means of identification” and “of another
person.” Id. at 652-57. Mr. Tavares contends that Flores-Figueroa
represents an emerging trend in the Supreme Court’s jurisprudence
of applying the scienter requirement to every statutory element.
Thus, he concludes, this court should extend “knowingly” to the
victim’s underage status.
The Sixth and Seventh Circuits have considered and
rejected this argument. See United States v. Daniels, 653 F.3d
399, 410 (6th Cir. 2011); United States v. Cox,
577 F.3d 833,
837-38 (7th Cir. 2009). These circuits agree that “the context of
§ 2423(a) compels a reading of the statute that does not require
16
See, e.g., United States v. Daniels, 653 F.3d 399, 410 (6th
Cir. 2011); United States v. Cox,
577 F.3d 833, 837-38 (7th Cir.
2009); United States v. Jones,
471 F.3d 535, 539 (4th Cir. 2006);
United States v. Griffith,
284 F.3d 338, 350-51 (2d Cir. 2002);
United States v. Taylor,
239 F.3d 994, 997 (9th Cir. 2001); United
States v. Hamilton,
456 F.2d 171, 173 (3d Cir. 1972).
-22-
‘knowingly’ to be applied to the victim’s age.” Daniels, 653 F.3d
at 410. The court in Daniels held that this reading
“is consistent with
congressional intent that minors
need special protection against
sexual exploitation.” We agree
that this context justifies
requiring a defendant--who would
presumably know he is treading
close to the line in
transporting a young person to
engage in illicit sexual
activity--to bear the risk that
the person transported is
underage.
Id. (quoting Cox, 577 F.3d at 837). In addition to context, the
court noted that
under the Mann Act, 18 U.S.C.
§ 2421, a defendant commits a
crime any time he transports an
individual for the purpose of
prostitution. Therefore, age in
§ 2423(a) is not a factor that
distinguishes criminal behavior
from innocent conduct, but
rather serves to justify a
harsher penalty when a victim is
underage. In contrast to the
aggravated-identity-theft
statute [at issue in Flores-
Figueroa], when a defendant
violates the Mann Act, he knows
a real victim is involved, even
if he does not know that victim
is a minor.
Id. (citations omitted) (internal quotation marks omitted).
There is further reason to doubt that the Supreme Court
intended such a modification of existing case law interpreting
§ 2423(a). In Flores-Figueroa, Justice Alito, noting the
-23-
importance of context in legislative interpretation, suggested in
a concurring opinion that the majority’s principles of
interpretation would not extend the scienter requirement in
§ 2423(a) to the underage status of the victim. 556 U.S. at 660
(Alito, J., concurring in part and concurring in the judgment).17
As the Seventh Circuit noted in Cox, 577 F.3d at 838, the majority
in Flores-Figueroa did not take explicit issue with Justice Alito’s
caution and, indeed, appeared to endorse it. See Flores-Figueroa,
556 U.S. at 652. For these reasons, we are persuaded by the
reasoning of our sister circuits, and we see no need to depart from
it.
Our construction of the term “knowingly” in the statutory
language is fatal to Mr. Tavares’s second sufficiency challenge and
to his claim that the jury instruction was infirm. Even assuming,
for the sake of argument, that the Government had not produced
sufficient evidence of Mr. Tavares’s knowledge of B.B.’s age, such
a failure is irrelevant. The Government was under no obligation to
prove that Mr. Tavares knew B.B. was underage.
17
“In interpreting a criminal statute . . . it is fair to
begin with a general presumption that the specified mens rea
applies to all the elements of an offense, but it must be
recognized that there are instances in which context may well rebut
that presumption.” Flores-Figueroa v. United States, 556 U.S. 646,
660 (2009) (Alito, J., concurring in part and concurring in the
judgment). Justice Alito then specifically mentioned § 2423(a) as
an example of such a situation and noted that “[t]he Courts of
Appeals have uniformly held that a defendant need not know the
victim’s age to be guilty under this statute.” Id.
-24-
3. Issues Raised by Mr. Jones
Mr. Jones challenges his convictions on Counts Nine and
Fourteen. We address these challenges in turn.
a. Aiding and Abetting Transportation of a Minor
(Count Nine)
Mr. Jones was convicted of aiding and abetting
Mr. Tavares’s transportation of B.B., in violation of 18 U.S.C.
§ 2423(a). He contends that the Government did not prove that he
participated in Mr. Tavares’s transportation of B.B. Rather, he
maintains, the Government established that he was merely present
while Mr. Tavares committed a crime.
To convict Mr. Jones of aiding and abetting, the
Government was required to prove that he “participated in the
illegal venture and sought by his actions to make it succeed.”
Downs-Moses, 329 F.3d at 261. “[P]roof of sufficient participation
in the crime, as well as knowledge of it, is required to convict.”
United States v. Guerrero, 114 F.3d 332, 342 (1st Cir. 1997). Mere
presence at the scene of the crime, even “with knowledge that a
crime is being committed, is generally insufficient.” United
States v. Campa,
679 F.2d 1006, 1010 (1st Cir. 1982).
We conclude that the evidence produced at trial was
sufficient to convict Mr. Jones of aiding and abetting the
transportation of B.B. The Government established that Mr. Jones
was a pimp and that he worked as one with Mr. Tavares. It also
established that Mr. Jones was party to the discussion at B.B.’s
-25-
sister’s home about “[g]oing to Boston to make money,” which a jury
reasonably could infer was a discussion about prostitution and one
in which Mr. Jones participated. A jury could conclude that
Mr. Jones’s participation in such a discussion was part of an
effort to recruit B.B. to be a prostitute, either for him or for
Mr. Tavares. Given that the group left for Boston soon after, a
jury further reasonably could infer that Mr. Jones accompanied them
as part of the scheme to bring B.B. into the prostitution ring.
B.B. also testified that she was instructed on the ride
to Boston to choose a pimp for whom to work from among the men in
the car, including Mr. Jones. A jury could draw at least two
reasonable inferences from this testimony, both supporting
Mr. Jones’s conviction. First, a jury reasonably could infer that
Mr. Jones stood to benefit financially from transporting B.B.
because there was a chance she would work for him. Second, it
could infer that Mr. Tavares’s indication of Mr. Jones as a
potential pimp for B.B. demonstrates Mr. Jones’s association with
Mr. Tavares’s plan to transport B.B. for prostitution. Indeed, had
B.B. chosen differently, Mr. Jones could have been principally
liable.
Mr. Jones stresses B.B.’s testimony that she did not
speak to him either at her sister’s home or during the car ride.
This argument is unavailing. Considering B.B.’s testimony as a
whole and Mr. Jones’s working relationship with Mr. Tavares, such
-26-
lack of conversation between Mr. Jones and B.B. does not raise a
reasonable doubt about Mr. Jones’s aiding and abetting liability.
Mr. Jones’s presence at the discussion about making money in Boston
and on the subsequent car ride permitted the jury to conclude that
Mr. Jones had more than a coincidental association with
Mr. Tavares’s criminal venture and, indeed, had joined the illegal
enterprise.
We therefore conclude that the evidence at trial was
sufficient to justify Mr. Jones’s conviction on Count Nine.
b. Due Process and Voluntariness of K.S.’s
Testimony (Count Fourteen)
Mr. Jones also was convicted of knowingly transporting a
minor, K.S., in interstate commerce with the intent that she engage
in prostitution, in violation of 18 U.S.C. § 2423(a). Mr. Jones
alleges that K.S.’s testimony was coerced and that its admission
into evidence violated his Fifth Amendment right to due process.
He also claims, in the alternative, that the district court erred
by failing to investigate sua sponte allegations of coercion.
K.S. was a Government witness. She testified that she
met Mr. Jones when she was sixteen and began working for him as a
prostitute. In this capacity, she worked for Mr. Jones in Boston
and traveled with him on several occasions to work as a prostitute
in other cities. In addition to Boston, Mr. Jones prostituted K.S.
in Atlantic City, New Jersey, in Philadelphia, Pennsylvania and in
Washington, D.C. After ending her relationship with Mr. Jones,
-27-
K.S. worked as a prostitute for Mr. Tavares.
On direct examination, K.S. admitted that she did not
want to testify, but was doing so under a subpoena. Mr. Jones’s
counsel conducted a full cross-examination of K.S. During that
cross-examination, she agreed with defense counsel that she had
been threatened by FBI agents and a federal prosecutor with
remaining in jail after she was arrested for failing to appear as
required by a summons and with losing custody of her daughter if
she did not “do what [they] wanted [her] to do.”18 She also agreed
she was just going to tell the prosecution what they wanted to hear
so she could move on with her life. On redirect, K.S. stated that
she had been threatened by the FBI and federal prosecutors when she
had been required to appear before the grand jury four years
earlier and admitted that she had not told the district court that
she had been threatened.
Mr. Jones did not object to K.S.’s testimony at trial.
Accordingly, we review his challenges to K.S.’s testimony for plain
error. United States v. Matos-Quiñones, 456 F.3d 14, 20-21 (1st
Cir. 2006).
Mr. Jones’s claim is very similar to the one we rejected
in United States v. Hall, 434 F.3d 42 (1st Cir. 2006), and that
case provides substantial guidance. According to the testimony in
that case, agents told one witness that she faced prosecution if
18
R.296 at 32.
-28-
she did not tell them “what they wanted to hear.” Id. at 57
(internal quotation marks omitted). Another witness testified that
an agent told him that if he did not cooperate, the Government
would take his home. In light of this testimony, the defendant in
Hall contended that the Government had violated his Fifth and Sixth
Amendment rights by “threatening certain witnesses with severe
consequences if they did not testify on the government’s behalf.”
Id. In assessing this claim, we noted that a due process violation
can occur when witnesses are discouraged from testifying through
threats or other coercion. Notably, we distinguished those cases
from situations where “the government has to press unwilling
witnesses . . . to provide testimony that they are reluctant to
give.” Id. at 57-58. Therefore, unlike Government efforts to
prevent the testimony of certain witnesses, “[t]here is no blanket
rule against inducements by the government to witnesses to produce
truthful testimony.” Id. at 58. While making this distinction, we
nevertheless recognized the possibility that, “in extreme
circumstances, government misconduct[] could occur through improper
efforts to shape testimony to the government’s liking.” Id.
However, we determined that Hall presented no such circumstances,
and, in any event, no constitutional violation had occurred because
“there was conflicting testimony as to whether the government
actually threatened [the witnesses] and defense counsel was allowed
to cross-examine on the issue, leaving it to the jury to evaluate
-29-
witness credibility in light of the evidence concerning the alleged
threats.” Id.
Upon examination of the circumstances here, we must reach
the same conclusion as the one that we reached in Hall: There is
no constitutional violation. To be sure, K.S. did not want to
testify against Mr. Jones. Indeed, she threw away a summons to
appear before the grand jury and subsequently failed to appear as
required.19 She testified at trial only because she had been
subpoenaed,20 and she stated several times that she did not want to
testify against Mr. Jones.21 What Mr. Jones’s counsel characterized
as the Government’s “threats,” are more accurately viewed as lawful
coercion of a reluctant witness to testify as required by law.
Such “threats” are the legal consequences for failing to appear
pursuant to a summons. Additionally, as in Hall, Mr. Jones’s
counsel fully cross-examined K.S. on this issue. There was ample
testimony in the record to permit the jury to evaluate K.S.’s
credibility in light of all these circumstances.
Nor can we say, as suggested by Mr. Jones, that the
district court committed plain error in not conducting an
evidentiary hearing prior to admitting the testimony. Mr. Jones
contends that these “threats” trigger the analysis set forth in
19
R.296 at 34.
20
R.295 at 104.
21
See, e.g., R.296 at 23-24, 27.
-30-
LaFrance v. Bohlinger, 499 F.2d 29, 35 (1st Cir. 1974). In that
case, we determined that the circumstances surrounding a witness’s
statement were so indicative of its involuntariness as to require
a hearing. Specifically, a witness had recanted a prior sworn
statement while testifying; he claimed that the prior statement was
a police fabrication that he had been forced to sign while under
the influence of drugs. Id. at 31. There, we stated that “[i]t is
unthinkable that a statement obtained by torture or by other
conduct belonging only in a police state should be admitted at the
government’s behest in order to bolster its case.” Id. at 34.
Because the surrounding circumstances raised a substantial claim
that the statement was legally involuntary, see Lego v. Twomey,
404
U.S. 477, 480 (1972); Jackson v. Denno,
378 U.S. 368, 372 (1964),
we held that the trial court had an obligation to investigate,
through an evidentiary hearing, whether the testimony was
voluntary. LaFrance, 499 F.3d at 35.
There is a material and qualitative distinction between
the prosecutorial misconduct at issue in LaFrance and the situation
before us today. LaFrance dealt with police extraction of a
statement from a drug-impaired witness, by means which we described
as “police threats and other blatant forms of physical and mental
duress.” Id. In her testimony, K.S. related on cross-examination
instances of lawful pressure. She was apprised of the lawful
consequences of her failing to testify, which she was legally
-31-
required to do. The purpose of informing her of those legal
consequences, moreover, was to ensure that she fulfilled her
obligation to testify, not to ensure that she give particular
testimony.
Given the nature of the Government’s pressure and the
full picture of the surrounding circumstances rendered by the
robust cross-examination to which K.S. was subject, we conclude
that the district court had no duty to inquire further into the
voluntariness of K.S.’s testimony. There was no error, and
certainly no plain error, in the district court’s admission of this
testimony.
B. Sentencing
1. Mr. Tavares’s Sentencing
Mr. Tavares’s presentence report (“PSR”) calculated that
he had a total of fourteen criminal history points, which
corresponds to a criminal history category of VI. The PSR noted
that Mr. Tavares had one three-point state criminal conviction and
eight one-point offenses, including two juvenile adjudications.
Because the United States Sentencing Guidelines section 4A1.1(c)
provides that a maximum of four one-point prior offenses can be
included in a criminal history points calculation, the PSR assigned
only four points for these convictions.
At sentencing the district court heard arguments from the
Government and from Mr. Tavares concerning the PSR’s criminal
-32-
history category calculation, the imposition of several sentence
enhancements and the 18 U.S.C. § 3553(a) factors. The Government
submitted that Mr. Tavares’s criminal history category was VI;
Mr. Tavares maintained that the appropriate criminal history
category was V. The district court never determined which criminal
history category was correct.
The district court imposed “organizer or leader” and
obstruction of justice enhancements for one of Mr. Tavares’s
conduct groups (Group 3). Given these enhancements and their
differing views on the appropriate criminal history category, the
Government and Mr. Tavares disagreed on the correct guidelines
sentencing range. The Government’s guidelines sentencing range
calculation was 235 to 293 months. Mr. Tavares’s guidelines
sentencing range calculation was 210 to 262 months. The Government
asked that the district court impose a sentence of 300 months’
imprisonment, a sentence in excess of the Government’s own
calculated guidelines sentencing range.
The district court never chose between the Government’s
proposed guidelines sentencing range and Mr. Tavares’s. During
argument on sentencing enhancements, the court stated:
“[E]ssentially I will sentence in a way that it will make [the
guidelines sentencing range calculation] not matter.”22 After
considering both potential ranges, the district court decided that
22
R.308 at 17.
-33-
it would impose a sentence above either range and so it was
unnecessary to decide between the two. The court ultimately
imposed a sentence of 300 months’ imprisonment on Mr. Tavares.
The court explained that it imposed this sentence for
several reasons. First, it viewed Mr. Tavares’s crime as “a crime
of intentionality,” “a lifestyle crime,” “a choice . . .
Mr. Tavares made.”23 Second, the court reasoned that “this is a
crime that can be deterred because it’s the lifestyle choice, and
if the cost of this lifestyle is 30 years in prison, then it seems
. . . that others will pause.”24 The court also stated that the
testimony of Mr. Tavares’s victims concerning the violence to which
he subjected them during the crimes of conviction was “about the
most disturbing testimony that [it had] heard.”25 Thus, it
reasoned, “a 300-month sentence serves all the purposes of
sentencing but notably and candidly retribution, retribution for
the women who were victimized, retribution for the violence they
suffered.”26 The court concluded that its chosen sentence “fully
satisfie[d] the purposes of sentencing, particularly general
deterrence, specific deterrence, retribution, public safety, indeed
23
Id. at 43.
24
Id.
25
Id.
26
Id. at 44.
-34-
incapacitation.”27
“We review the district court’s interpretation and
application of the sentencing guidelines de novo and factual
findings for clear error.” United States v. Cortés-Cabán, 691 F.3d
1, 26 (1st Cir. 2012). “We review the reasonableness of a criminal
sentence under an abuse-of-discretion standard.” United States v.
Rivera-Moreno,
613 F.3d 1, 8 (1st Cir. 2010) (citing Gall v. United
States,
552 U.S. 38, 51 (2007)). Review of a sentence under this
standard generally involves a two-step process: First, we
determine whether the district court committed procedural error;
second, if there was no procedural error, we determine whether the
sentence was substantively reasonable. See Gall, 552 U.S. at 51.
We review for plain error Mr. Tavares’s claims that he raises for
the first time on appeal. See United States v. Ríos-Hernández,
645
F.3d 456, 462 (1st Cir. 2011).
a. Calculation of Mr. Tavares’s Guidelines
Sentencing Range
Mr. Tavares correctly points out that the district court
never conclusively determined his guidelines sentencing range. It
considered both the Government’s calculation and Mr. Tavares’s, but
never determined which was correct or stated upon which it relied.
This lapse is clearly a significant procedural error. The district
court is required to calculate the defendant’s guidelines
27
Id. at 47.
-35-
sentencing range before exercising its discretion. See Gall, 552
U.S. at 49 (stating that “a district court should begin all
sentencing proceedings by correctly calculating the applicable
Guidelines range”) (citing Rita v. United States, 551 U.S. 338,
347-48 (2007)). “[F]ailing to calculate (or improperly
calculating) the Guidelines range” is a “significant procedural
error.” Gall, 552 U.S. at 51. The Supreme Court has made clear
that “[t]he Guidelines provide a framework or starting point . . .
for the judge’s exercise of discretion.” Freeman v. United States,
131 S. Ct. 2685, 2692 (2011).
Under the particular circumstances of this case, however,
we are convinced that the district court’s failure to calculate
definitively the operative guidelines sentencing range was
harmless. The record disclosed that the district court understood
the position of the parties on the applicable guidelines range. It
is also apparent that the court understood that the only point of
disagreement between the parties was the applicable criminal
history category. There is, moreover, no basis to conclude, and
neither party suggests, that the proper guidelines sentencing range
was other than one of those suggested and discussed at the
sentencing hearing. The court imposed sentencing enhancements, the
sole purpose of which is to alter a defendant’s guidelines
sentencing range, and considered both resulting guidelines
-36-
sentencing ranges.28 The record makes equally clear, however, that,
having been apprised of these considerations, the district court
determined that a sentence within the guidelines range as
calculated by either party was not an appropriate sentence. The
court stated: “[E]ssentially I will sentence in a way that it will
make [the guideline sentencing range calculation] not matter.”29
Therefore, regardless of whether Mr. Tavares’s guidelines
sentencing range was that calculated by the Government or by
Mr. Tavares, the district court was of the view that a sentence of
300 months was warranted.
Although the district court’s failure to calculate
conclusively Mr. Tavares’s guideline sentencing range is a serious
procedural error, such an error does not necessarily require remand
for re-sentencing. The Supreme Court held in Williams v. United
States that “remand is required only if the sentence was imposed as
a result of” the error.30 503 U.S. 193, 202-03 (1992) (internal
quotation marks omitted). If “the district court would have
imposed the same sentence” even without the error, it was harmless.
28
R.308 at 5-25.
29
Id. at 17.
30
In United States v. Williams, 503 U.S. 193 (1992), the
Court was interpreting 18 U.S.C. § 3742(f)(1), which provides, in
relevant part, “[i]f the court of appeals determines that the
sentence was . . . imposed as a result of an incorrect application
of the sentencing guidelines, the court shall remand the case for
further sentencing proceedings.” Section 3742(f)(1) was not
changed by United States v. Booker,
543 U.S. 220 (2005).
-37-
Id. We routinely apply Williams’s harmless-error analysis to
procedural errors at sentencing.31 Whether the district court’s
commission of a significant procedural error, here its failure to
calculate Mr. Tavares’s guidelines sentencing range, is subject to
harmless-error analysis under Williams is a question of first
impression in this circuit. Our colleagues in the Sixth Circuit
have confronted squarely the issue of whether Williams applies to
a failure to calculate definitively the guidelines sentencing range
and have held that it does. See, e.g., United States v. Lanesky,
494 F.3d 558, 561-62 (6th Cir. 2007) (performing harmless-error
analysis where “the sentencing court did not calculate an
applicable guideline range at all”).32 Other circuits, while not
confronting precisely this issue, have held that other serious
procedural sentencing lapses are subject to Williams and to
31
See, e.g., United States v. McGhee, 651 F.3d 153, 158 (1st
Cir. 2011) (performing harmless-error analysis on the district
court’s erroneous application of a career offender designation);
United States v. Marsh,
561 F.3d 81, 86 (1st Cir. 2009) (applying
harmless-error analysis to the district court’s application of an
upward departure under U.S.S.G. § 5K2.0).
32
The Third and Ninth Circuits also have addressed this issue
in unpublished opinions and reached the same conclusion. See,
e.g., United States v. Swanson, 455 F.App’x 246, 249 (3d Cir. 2011)
(holding that “the District Court’s failure to calculate explicitly
the Guidelines range . . . was harmless error”); United States v.
Olibas-Valenzuela, 404 F.App’x 213, 214 (9th Cir. 2010) (applying
harmless-error analysis where the district court “did not calculate
the advisory Guidelines range[] and neither the parties nor the
probation office identified the applicable range”).
-38-
harmless-error analysis.33
The reasoning of our sister circuits is persuasive. The
fact that Gall designated failure to calculate the guidelines
sentencing range as serious procedural error does not preclude
application of Williams’s harmless-error analysis. As our
colleagues on the Eighth Circuit have concluded, “[w]e see nothing
in Gall that undermines Williams or makes harmless-error analysis
inapplicable to procedural sentencing errors.” United States v.
Henson, 550 F.3d 739, 741 (8th Cir. 2008). We note, furthermore,
that the Supreme Court in United States v. Booker,
543 U.S. 220
(2005), noted the continued validity of harmless-error analysis in
33
See, e.g., United States v. Woods, 670 F.3d 883, 886 (8th
Cir. 2012) (“A failure to properly calculate the advisory
Guidelines range is a significant procedural error, and a
non-harmless error in calculating the guidelines range requires a
remand for resentencing.” (quoting United States v. Spikes,
543
F.3d 1021, 1023 (8th Cir. 2008))); United States v. Bacon,
617 F.3d
452, 456-57 (6th Cir. 2010) (applying harmless-error analysis where
“the district court . . . committed a significant procedural
error”); United States v. Lynn,
592 F.3d 572, 576 (4th Cir. 2010)
(same); United States v. Delgado-Martinez,
564 F.3d 750, 752-53
(5th Cir. 2009) (same); United States v. Abbas,
560 F.3d 660, 666
(7th Cir. 2009) (applying Williams’s harmless-error analysis to “a
mistake that is specifically listed as a significant procedural
error in Gall [v. United States,
552 U.S. 38 (2007)]”); United
States v. Livesay,
525 F.3d 1081, 1092 (11th Cir. 2008) (applying
harmless-error analysis where “the district court committed prong
one or ‘procedural’ Gall error when it departed 18 levels under
§ 5K1.1”); United States v. Grissom,
525 F.3d 691, 696 (9th Cir.
2008) (holding that remand is necessary only “if the sentence
imposed resulted from an incorrect application of the Sentencing
Guidelines, and the error was not harmless” (emphasis added)
(internal quotation marks omitted)); United States v. Kristl,
437
F.3d 1050, 1054-55 (10th Cir. 2006) (holding that the court “must
remand--without reaching the question of reasonableness--unless the
error is harmless”).
-39-
procedural error cases. The Court stated that “in cases not
involving a [constitutional] violation, whether resentencing is
warranted or whether it will instead be sufficient to review a
sentence for reasonableness may depend upon application of the
harmless-error doctrine.” Id. at 268.
An error is harmless if it “did not affect the district
court’s selection of the sentence imposed.” Williams, 503 U.S. at
203. However, even if we are satisfied that an error did not
affect the district court’s determination of the sentence, we still
must review the sentence for substantive reasonableness. See id.
(“If the party defending the sentence persuades the court of
appeals that the district court would have imposed the same
sentence absent the erroneous factor, then a remand is not required
. . . and the court of appeals may affirm the sentence as long as
it is also satisfied that the departure is reasonable.”); United
States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009) (reviewing the
district court’s discussion of § 3553(a) factors after determining
that any error in the district court’s sentencing was harmless).
With these principles in mind, we first consider whether
the district court’s error was harmless. As we noted earlier, the
district court clearly stated that it would sentence Mr. Tavares in
such a manner as to render the guidelines sentencing range
irrelevant. It also engaged in a lengthy colloquy with the parties
concerning various enhancements to Mr. Tavares’s sentence.
-40-
Ultimately, the district court calculated Mr. Tavares’s guidelines
sentencing range assuming a criminal history category of V and then
assuming a criminal history category of VI. Immediately before
sentencing Mr. Tavares, the court stated, “I just want to identify
again the Sentencing Guideline range which was[,] even accepting
the defense’s calculations, the guideline range is 210 to 262
months. I’ve described why, taking the government’s calculations
. . . it’s still 235 to 293 at a category 6.”34 With both of these
potential guidelines sentencing ranges in mind, the court then
stated, “I am going to accept the government’s recommendation here,
and here’s why: This is a crime of intentionality. This is a
lifestyle crime. This is a choice . . . Mr. Tavares made.”35
This is just the type of harmless error in sentencing
envisioned in United States v. Rodriguez, 630 F.3d 39 (1st Cir.
2010). In Rodriguez, we stated:
Certainly there are
situations in which a judge
might make clear that a dispute
about a Guidelines calculation
did not matter to the sentence.
This might be a different case
if, for example, the district
judge had been faced with an
explicit choice between the two
sets of Guidelines, and thus
understood the magnitude of the
difference between them, when he
said the choice did not affect
34
R.308 at 42.
35
Id. at 43.
-41-
the sentence.
Id. at 43. Disagreement over Mr. Tavares’s criminal history
category separates Mr. Tavares’s calculation from the Government’s.
The district court understood this disagreement and chose not to
decide between the two proposed guidelines sentencing ranges
because the severity and nature of Mr. Tavares’s crimes of
conviction made doing so unnecessary. Indeed, in its statement of
reasons, the district court wrote that “Criminal History Category
is V or VI.”36 The district court therefore did not fail completely
to calculate Mr. Tavares’s guidelines sentencing range or impose
his sentence without any consideration of the Guidelines. Rather,
it determined that whether Mr. Tavares’s criminal history category
was V or VI did not impact its sentencing decision. The district
court clearly understood the options within the possible guidelines
calculations and clearly rejected all of them as yielding too
lenient a sentence. The district court’s evident intent to
sentence Mr. Tavares to 300 months’ imprisonment regardless of
whether his criminal history category was V or VI is sufficient to
demonstrate that the district court’s failure to determine
Mr. Tavares’s guidelines sentencing range did not affect the
sentence it imposed.
This situation is not materially different from
situations that we and our sister circuits have encountered with
36
R.283 at 7.
-42-
respect to other procedural errors. For example, in Marsh, the
district court stated “that it would impose the same sentence as a
non-guideline sentence under 18 U.S.C. § 3553(a).” 561 F.3d at 85.
We held that the defendant’s claim of procedural error “is not one
we need to resolve” because “the district court stated that it
would have imposed the same sentence as a non-Guideline sentence.”
Id. at 86. This statement was sufficient for us to conclude that
“an alleged Guideline error would not have affected the district
court’s sentence.” Id.; see also United States v. Ortiz, 636 F.3d
389, 395 (8th Cir. 2011) (holding that “[b]ecause the district
court stated that ‘even in the absence of these departures under
the Sentencing Guidelines, [the district court] would [have]
impose[d] the same sentence,’ any procedural error was harmless as
a matter of law” (alterations in original)); United States v.
Teague,
469 F.3d 205, 209-10 (1st Cir. 2006) (holding that the
district court’s erroneous determination that the defendant was a
career offender under the Guidelines was harmless because the
district court stated that it found the career offender enhancement
“undue or excessive” and so did not rely on the enhancement in
sentencing).37
37
This case stands in stark contrast to typical cases where
a district court’s failure to calculate a defendant’s guidelines
sentencing range has warranted a remand for resentencing. Cases in
which reversible error has been found involve far less awareness of
the applicable guidelines range than we find here. In United
States v. Peebles, 624 F.3d 344, 347 (6th Cir. 2010), the Sixth
Circuit remanded the case for resentencing because “the transcript
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We therefore conclude that the district court’s failure
to choose between the two proposed guidelines sentencing ranges and
determine definitively which applied is harmless error. We must
therefore review the substantive reasonableness of Mr. Tavares’s
sentence. See infra II.B.1.f.
b. Since-Vacated State Conviction
During the pendency of this appeal, Mr. Tavares’s
Massachusetts criminal conviction, which was given a score of three
in the PSR, was reversed and its verdict set aside. See
Commonwealth v. Tavares, 959 N.E.2d 449, 451-52 (Mass. App. Ct.
2011). According to the PSR, Mr. Tavares’s criminal history
category was VI; had this conviction not been counted, it would
have been V. He contends that the inclusion of this since-vacated
state conviction in his guidelines sentencing range calculation
requires resentencing.
As we have noted earlier, Mr. Tavares’s sentence was not
imposed as a result of his guidelines sentencing range calculation;
his criminal history category did not affect the district court’s
of the sentencing hearing does not reflect that the district court
addressed the Guidelines range at all.” “The applicable Guidelines
range was not discussed during the hearing by either attorney or by
the judge,” so the court found it “impossible to determine with
certainty what sentencing range the district court relied on, and
whether the district court meant to impose a sentence within or
above that range.” Id.; see also United States v. Novales, 589
F.3d 310, 314 (6th Cir. 2009) (remanding for resentencing where
“the district court never mentioned any specific, numeric
Guidelines range at any point during the [sentencing] hearing”).
-44-
sentencing. Because failing to determine Mr. Tavares’s guidelines
sentencing range is harmless error, any error in calculating the
guidelines sentencing range, such as improperly including a prior
conviction, is harmless.
We have recognized that, in some cases, an erroneous
calculation or designation “can be influential even if not treated
as controlling.” United States v. McGhee, 651 F.3d 153, 159 (1st
Cir. 2011). In McGhee, the district court had classified the
defendant as a career offender under the Guidelines but the case on
which it relied to do so subsequently was overruled. We therefore
were required to “treat that [designation] retrospectively as
error.” Id. at 158. Moreover, in explaining the defendant’s
sentence, the district court made ambiguous remarks concerning its
rationale for the sentence’s length. As a result, we held that “we
think the transcript is less clear than it was in Teague that the
career offender designation was entirely irrelevant.” Id. at 159.
In Teague, we concluded that the district court had made clear that
its erroneous designation of the defendant as a career offender had
not mattered to its sentencing--only the circumstances of prior
crimes and the defendant’s role in the crime of conviction had been
considered. 469 F.3d at 209. Therefore no remand was required.
Id. at 209-10.
This case is not like McGhee. We do not believe that the
record supports the view that the district court was influenced
-45-
materially by the inclusion of Mr. Tavares’s since-vacated
conviction in his PSR. On the contrary, the record indicates that
the district court considered only Mr. Tavares’s crimes of
conviction in imposing his sentence, not his since-vacated
conviction. After initially stating its chosen sentence, the
district court explained its rationale:
I believe that this is a crime
that can be deterred because
it’s the lifestyle choice, and
if the cost of this lifestyle is
30 years in prison, then it
seems to me that others will
pause.
I’m going to accept the
government’s recommendation
because I sat through the
testimony of women that was
about the most disturbing
testimony that I’ve heard since
I’ve been on the bench.[38]
The court repeatedly connected trial testimony39 and Mr. Tavares’s
victims40 in his crimes of conviction to his sentence of 300 months.
Mr. Tavares’s since-vacated conviction was not mentioned by the
district court and there is no evidence in the record that the
district court was in any way relying on, or influenced by, this
conviction or the PSR’s guidelines sentencing range calculation
which included it. As we have noted earlier, the district court
38
R.308 at 43.
39
Id.
40
Id. at 45.
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did not view Mr. Tavares’s criminal history as operative in the
determination of the sentence. It made clear that it would have
imposed the same sentence had Mr. Tavares’s criminal history
category been V; its focus was the nature and the circumstances of
the crimes of conviction. See Teague, 469 F.3d at 209-10
(affirming the defendant’s sentence where the district court
erroneously believed that the defendant was a career offender under
the Guidelines and then used its discretion to depart downward from
the guidelines sentencing range after considering the defendant’s
role in the crime of conviction).
We therefore conclude that the inclusion of Mr. Tavares’s
since-vacated conviction in his PSR was harmless error.
c. “Organizer or Leader” Enhancement
The district court imposed a two-level “organizer or
leader” enhancement on Mr. Tavares’s sentence under United States
Sentencing Guidelines section 3B1.1(c). Evidence produced at trial
established that Mr. Tavares had a prostitute collect money from
his other prostitutes, drive around his other prostitutes and
inform him when a prostitute had misbehaved. The district court
found that “Mr. Tavares was the top of this organization,”41 stating
that “[t]here’s no question that he was in a leadership role” in
committing the offenses of conviction.42
41
R.308 at 16.
42
Id. at 15.
-47-
United States Sentencing Guidelines section 3B1.1(c)
provides for a two-level enhancement if the defendant “was an
organizer, leader, manager, or supervisor in any criminal activity
other than” a criminal activity involving five or more
participants. Under this provision, therefore, the defendant must
exercise leadership over fewer than five participants. A
“‘participant’ is a person who is criminally responsible for the
commission of the offense, but need not have been convicted.”
U.S.S.G. § 3B1.1 cmt. 1.
Mr. Tavares contends that the prostitutes he employed
cannot be “participants” within the meaning of section 3B1.1(c)
because they received immunity from prosecution. Their immunity,
he argues, prevents them from being criminally responsible for the
offenses of conviction. We cannot accept this argument. The
Guidelines’ commentary notes that a “participant” need not be
convicted of the offense. That a participant can be unindicted is
clear from the plain language of the Guideline. See, e.g., United
States v. Scott, 529 F.3d 1290, 1303 (10th Cir. 2008) (“A
‘participant,’ in turn, must be ‘criminally responsible for the
commission of the offense’ even if he or she was not charged or
convicted.” (quoting U.S.S.G. § 3B1.1 cmt. n.1)); United States v.
Messervey,
317 F.3d 457, 464-65 (5th Cir. 2002) (rejecting
defendant’s assertion that “the district court erred when it found
that those [the defendant] exploited to his advantage in his fraud
-48-
schemes were ‘participants’ in the offenses . . . because the PSR
described these people as ‘victims’”); see also U.S.S.G. § 3B1.1
introductory cmt. (“The determination of a defendant’s role in the
offense is to be made on the basis of all conduct within the scope
of § 1B1.3 . . . and not solely on the basis of elements and acts
cited in the count of conviction.”).
We have not had occasion to consider whether a grant of
immunity precludes designation as a “participant.” The only
appellate court to have addressed the issue has concluded that a
grant of immunity does not preclude such a designation. See United
States v. Anderson, 580 F.3d 639, 650 n.16 (7th Cir. 2009); United
States v. Jackson,
95 F.3d 500, 511 (7th Cir. 1996). In light of
our sister circuit’s reasoning and the clear language of the
Guideline, we also hold that a “participant” can be an immunized
witness against the defendant. The district court did not err in
imposing an “organizer or leader” enhancement.
d. Juvenile Adjudications
Mr. Tavares also challenges the inclusion of two juvenile
adjudications in his PSR, each scored as one point under United
States Sentencing Guidelines section 4A1.2(d)(2)(B). He raises two
issues on appeal, neither of which he raised in the district court.
Thus, our review is for plain error.
First, Mr. Tavares contends that the Government failed to
meet its burden of showing that his juvenile offenses were punished
-49-
by at least sixty days’ confinement. Mr. Tavares misapprehends the
legal standards governing the inclusion of his juvenile
adjudications in the PSR. The PSR scored each adjudication under
section 4A1.2(d)(2)(B). Under this section, the Government only
need establish that the relevant “juvenile sentence [was] imposed
within five years of the defendant’s commencement of the instant
offense”; it does not have to establish any length of confinement.
Mr. Tavares erroneously cites the standard required to score an
adjudication as two points, see U.S.S.G. § 4A1.2(d)(2)(A), which
the PSR did not do. Because Mr. Tavares alleges that the
Government failed to meet the requirements of a standard it did not
apply, his argument fails.
Second, Mr. Tavares urges us to reject the consideration
of juvenile adjudications in sentencing on policy grounds.
Mr. Tavares notes that his “main contention” is “that since the
sentencing guidelines are now advisory rather than mandatory . . .
it is open to him to argue that countervailing policies counsel
against use of juvenile adjudications in federal sentencing.”43
“The Guidelines specifically provide for certain juvenile
adjudications to be considered in evaluating the defendant’s
criminal history.” United States v. Gonzalez-Arimont, 268 F.3d 8,
14 (1st Cir. 2001) (citing U.S.S.G. § 4A1.2(d)). We consistently
43
Appellant Tavares’s Br. 60.
-50-
have upheld scoring juvenile adjudications under the Guidelines.44
Certainly, there is no plain error in considering Mr. Tavares’s
juvenile adjudications. In any event, as we have noted earlier,
Mr. Tavares’s sentence would have been the same even if the
juvenile convictions had not been considered. Moreover,
Mr. Tavares has eight prior convictions which were each scored one.
Mr. Tavares does not challenge the calculation of any of the
remaining six one-point convictions. Because the Guidelines
provide in section 4A1.1(c) that the maximum number of one-point
prior offenses that can be counted in the criminal history category
is four, eliminating two of these offenses still leaves six, more
than the four permitted. The exclusion of Mr. Tavares’s juvenile
adjudications, therefore, would not alter his criminal history
category calculation and so would not alter his sentence (even if
the district court had based Mr. Tavares’s sentence on his criminal
history category, which it did not). Therefore, we decline to
consider Mr. Tavares’s policy argument concerning the use of
juvenile adjudications.
e. Sentencing Memorandum
When sentencing above the guidelines range, the district
44
See, e.g., United States v. Gibbons, 553 F.3d 40, 46 (1st
Cir. 2009); United States v. Melendez,
301 F.3d 27, 34-35 (1st Cir.
2002); cf. United States v. Matthews,
498 F.3d 25, 36 (1st Cir.
2007) (finding “no constitutional barrier to the use of [juvenile]
adjudication[s] to support appellant’s enhanced sentence” under the
Armed Career Criminal Act).
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court is required to articulate its reasoning for the upward
departure. See 18 U.S.C. § 3553(c)(2). This requirement is met
when the district court sets forth its reasoning in a written
“statement of reasons” attached to the judgment. See, e.g., United
States v. Vargas-Dávila, 649 F.3d 129, 130 (1st Cir. 2011). The
district court’s statement of reasons includes a copy of
Mr. Tavares’s sentencing transcript in which the court explained
the imposition of his sentence.
Mr. Tavares makes much of the fact that on the statement
of reasons, the district court wrote “sentencing memo to follow” in
the space provided to justify the imposition of an above-guidelines
sentence. No separate memo was ever produced. We see no error
here. The district court adequately explained Mr. Tavares’s
above-guidelines sentence in the sentencing transcript and
incorporated that transcript in the statement of reasons. The
district court’s decision to incorporate the sentencing transcript,
which contained the required information, rather than to write its
reasoning in the space provided, adequately fulfilled the
requirement that the reasons for the imposition of the sentence be
stated and is not reversible error.
f. Adequate Explanation of Section 3553(a)
Factors
Mr. Tavares also maintains that his sentence is
procedurally unreasonable because the district court failed to
consider the mandatory § 3553(a) factors, especially Mr. Tavares’s
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background and characteristics.
The district court believed that a term of imprisonment
of 300 months “fully satisfie[d] the purposes of sentencing.”45 Our
review of the record makes clear that the district court considered
the mandatory § 3553(a) factors. “While the court ordinarily
should identify the main factors upon which it relies, its
statement need not be either lengthy or detailed.” United States
v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). We conclude
that the district court’s explanation is adequate. The court
specifically mentioned Mr. Tavares’s background several
times--including his psychological report and family history--the
sentences of co-defendants, deterrence and the violent nature of
the crimes of conviction.46 Given the record, we must conclude that
the district court did not fail to consider the § 3553(a) factors
or “fail[] to adequately explain the chosen sentence.” Gall, 552
U.S. at 51.
Therefore, we conclude that Mr. Tavares’s sentence was
procedurally correct and substantively reasonable.
2. Mr. Jones’s Sentencing
Mr. Jones challenges the procedural and substantive
reasonableness of his sentence. He specifically challenges the use
of his two prior convictions for resisting arrest as predicates for
45
R.308 at 47.
46
Id. at 43-44.
-53-
a career offender classification under the Guidelines and the
district court’s consideration of the § 3553(a) mandatory
sentencing factors. He also contends that his sentence is
substantively unreasonable because the district court gave
insufficient weight to the report of Mr. Jones’s forensic
psychologist. We address these issues in turn.
a. Career Offender Classification
The district court classified Mr. Jones as a career
offender under United States Sentencing Guidelines section 4B1.1
based on his prior Massachusetts convictions for resisting arrest.
Thus, Mr. Jones’s offense level was set at thirty-four, resulting
in an increased guidelines range. We review de novo a
determination that a prior conviction qualifies as a predicate
offense for the purposes of the career offender Guideline. See
United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).
United States Sentencing Guidelines section 4B1.1(a)
classifies a defendant as a career offender if (1) he was at least
eighteen years old at the time he committed the offense of
conviction, (2) the instant offense is a crime of violence and (3)
the defendant has at least two prior felony convictions of a crime
of violence. Mr. Jones urges that his convictions for resisting
arrest cannot be the basis for his career offender classification
because resisting arrest is not a crime of violence. We
consistently have rejected this argument. In Almenas, we held that
-54-
resisting arrest under Massachusetts law is a crime of violence
within section 4B1.1(a). 553 F.3d at 32-35. We reaffirmed this
conclusion recently in United States v. Grupee, 682 F.3d 143, 149
(1st Cir. 2012), and United States v. Davis,
676 F.3d 3, 7 (1st
Cir. 2012).
Mr. Jones attacks Almenas (and its progeny) as
inconsistent with the Supreme Court’s decision in Chambers v.
United States, 555 U.S. 122 (2009), decided after our decision in
Almenas. However, we rejected this claim in United States v.
Weekes,
611 F.3d 68, 72-73 (1st Cir. 2010). Therefore, the
district court did not err in classifying Mr. Jones as a career
offender under the Guidelines.
b. Remaining Challenges to Mr. Jones’s Sentence
“[A reviewing court] must first ensure that the district
court committed no significant procedural error . . . . Assuming
that the district court’s sentencing decision is procedurally
sound, the appellate court should then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Gall, 552 U.S. at 51. Accordingly, “[o]ur first task
is to determine whether the district court made any procedural
errors . . . . If the district court has committed no such
procedural error, we then review the substantive reasonableness of
the sentence imposed and review the sentence for abuse of
discretion.” Marsh, 561 F.3d at 85-86 (internal quotation marks
-55-
omitted). “[W]e afford the district court wide discretion in
sentencing.” Id. at 86. Here, because Mr. Jones did not object to
the substantive reasonableness of his sentence before the district
court, we review for plain error. See Matos-Quiñones, 456 F.3d at
20-21.
Mr. Jones submits that the district court committed
significant error by failing to consider the mandatory § 3553(a)
factors, to make explicit reference to those factors and otherwise
to explain adequately his sentence.
The record demonstrates that the district court
explicitly considered the § 3553(a) factors. It identified the
main factors upon which it relied in sentencing Mr. Jones,
emphasizing the connection between the sentence imposed and the
nature and circumstances of the offense, the need for the sentence
to reflect the seriousness of the offense and the avoidance of
unwarranted sentence disparities. Although the district court’s
discussion of these factors was brief, “we do not require the court
to address those factors, one by one, in some sort of rote
incantation when explicating its sentencing decision.” Marsh, 561
F.3d at 86 (internal quotation marks omitted).
The district court also addressed adequately Mr. Jones’s
history and characteristics. It discussed his psychologist’s
report detailing his family background, his history of restraining
orders and his statement to the court. However, after considering
-56-
all of the relevant factors, the district court found that the
gravity of the offense trumped any weight that might otherwise be
given to Mr. Jones’s background. The district court stated:
While I have read the
report that [Mr. Jones’s
counsel] handed up, there are
frankly certain offenses that
are so serious that even if
there’s an explanation for it in
someone’s background and history
and even if you can draw a
straight line from who they were
to who they are now, and if you
can understand it, there are
some offenses that can’t be
explained, can’t be justified.
This is one of them.[47]
In Mr. Jones’s view, this statement indicates the district court’s
refusal to consider his history and characteristics--a mandatory
factor under § 3553(a). We cannot accept this argument. The
district court considered Mr. Jones’s history and characteristics,
but after reviewing these factors, still believed that the nature
of the offense and surrounding circumstances required the sentence
imposed. The district court committed no procedural error in
making that determination.
We now address the substantive reasonableness of
Mr. Jones’s sentence.
Mr. Jones faults the district court for failing to give
47
R.303 at 17.
-57-
“significant weight” to the report of his forensic psychologist.48
The district court stated that it considered this report.49
Mr. Jones contends, however, that, because the district court
relied on his treatment of the victims in determining his sentence,
the district court also should have considered the mitigating
circumstances in his background that may have caused his behavior.
We cannot accept this contention. “That the sentencing court chose
not to attach to certain of the mitigating factors the significance
that the appellant thinks they deserved does not make the sentence
unreasonable.” United States v. Clogston, 662 F.3d 588, 593 (1st
Cir. 2011). Here, the district court considered Mr. Jones’s
mitigating evidence but was not persuaded by it.
We therefore conclude that Mr. Jones’s sentence was
procedurally correct and substantively reasonable.
Conclusion
For the reasons set forth in this opinion, Mr. Tavares’s
and Mr. Jones’s convictions and sentences are hereby affirmed.
AFFIRMED
48
Appellant Jones’s Br. 60.
49
R.303 at 17.
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