MARIANI, District Judge.
Kenneth Britton appeals the judgment of the United States District Court for the Middle District of Pennsylvania sentencing him to 210 months' imprisonment following his guilty plea to multiple conspiracy counts for his involvement in an interstate prostitution ring. For the reasons that follow, we will affirm.
Because we write primarily for the parties, who are familiar with the facts and the proceedings in this case, we will revisit them only briefly. Britton acted as a "pimp" in a prostitution ring, which occurred from February 2001 to December 2005, involved sixteen coconspirators and over 152 individuals, and spanned across several states. He sold the sexual services of young girls who often "had poor home lives, had dropped out of school, had been sexually abused, and had dismal hope for the future." Sealed App. 6.
One prostitute in the organization, Tana Adkins, carried the label of Britton's "bottom bitch." "Bottom bitches" are "prostitutes in charge of a pimp's other prostitutes, responsible for the recruitment, training, collection of earnings, forwarding the earnings to the pimp, and oversight of other prostitutes."
The Superseding Indictment named fifteen other individuals involved in the prostitution conspiracy, including Britton. On March 1, 2006, Britton was again indicted and charged for acts occurring in 2002, including sex trafficking of minors and interstate transportation of a juvenile. These new charges were consolidated into the Superseding Indictment. On September 21, 2007, Britton pled guilty to violation of 18 U.S.C. § 371 for conspiracy to use interstate transportation with intent to engage in prostitution in violation of 18 U.S.C. § 2421; coercion and enticement in violation of 18 U.S.C. § 2422; and interstate travel in aid of prostitution in violation of 18 U.S.C. § 1952. He also pled guilty to sex trafficking of minors in violation of 18 U.S.C. § 1591 for the acts occurring in 2002.
In Britton's plea agreement, the Government agreed that "[u]pon completion of the cooperation, if the United States believes the defendant has provided `substantial assistance' pursuant to § 5K1.1 of the United States Sentencing Guidelines, the United States may request the Court to depart below the guideline range." Supp. App. ("S.A.") 157. At sentencing, the parties noted that Britton had begun cooperating with the Government in another case, but that his cooperation was "not complete." S.A. 226. Accordingly, the Government concluded that Britton had not provided sufficient assistance to warrant a presentence downward departure under U.S.S.G. § 5K1.1. However, the Government noted that a post-sentence departure under Rule 35(b) of the Federal Rules of Criminal Procedure for Britton's substantial assistance could be forthcoming. S.A. 226-27.
On January 21, 2009, the District Court sentenced Britton to 300 months' imprisonment. Within a year of sentencing, after Britton testified against another individual, the Government filed a post-sentence motion for downward departure under Rule 35(b). The District Court granted the motion and reduced Britton's sentence to 210 months' imprisonment. At sentencing, the District Court applied the 2007 Sentencing Guidelines to all of the conspiracy counts. The 2007 Guidelines included a 2004 amendment, resulting in a harsher penalty for Britton's 2002 crimes, which had been incorporated into the conspiracy ending in 2005. Britton now appeals.
On appeal, Britton contends that the District Court (1) erred by applying a four-level enhancement for his role as "organizer or leader of a criminal activity"; (2) plainly erred in allowing the Government to defer a motion for a downward departure for presentence substantial assistance until after sentencing; and (3) erred by applying the 2007 Sentencing Guidelines in violation of the ex post facto clause. We address each of Britton's arguments in turn.
Britton first argues that the District Court erred by assigning him a four-level enhancement for his role as an "organizer or leader" in the prostitution ring. "We review a District Court's factual determinations underlying the application of the sentencing guidelines for clear error."
Under U.S.S.G. § 3B1.1(a), a four-level enhancement is proper "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." To qualify as "otherwise extensive," a criminal scheme must involve "no less than the defendant and one participant the defendant led or organized."
The record reveals that Tana Adkins qualifies as a "participant" led or organized by Britton because she assisted in promoting prohibited sexual conduct with respect to other victims.
Britton next argues that the Government improperly deferred making a presentence motion for downward departure under U.S.S.G. § 5K1.1 until after sentencing. Because Britton did not previously raise this argument, we review for plain error.
The Government has "a power, not a duty, to file a [substantial-assistance] motion."
Here, the Government's decision to bring a post-sentence Rule 35(b) motion rather than a presentence § 5K1.1 motion was not improper. The Government did not defer bringing a § 5K1.1 motion; it expressly declined to make one given Britton's incomplete presentence participation. At sentencing, counsel for both parties discussed the potential for
Finally, Britton argues that the District Court violated the ex post facto clause of the Constitution by applying the 2007 Sentencing Guidelines to his 2002 crimes. We exercise plenary review over legal interpretations of the Guidelines.
Here, Britton's 2002 crimes were incorporated into the conspiracy, which ended in 2005. The District Court applied the 2007 Guidelines to all of the conspiracy counts because the Guidelines did not materially change between 2005 and 2007. The 2007 Guidelines reflected a 2004 amendment that resulted in a harsher penalty when applied to Britton's 2002 crimes. Under
We have considered all of the arguments advanced by the parties and conclude that no further discussion is necessary. The judgment of the District Court will be affirmed.