1. Sufficiency of evidence of sex trafficking involving underage victim
The defendant was convicted, after trial, of several offenses, including sex trafficking of a minor who was less than 14 years old, in violation of 18 U.S.C. § 1591(a) and (b)(1). She moved unsuccessfully for a judgment of acquittal (Fed.R.Crim.P. 29), arguing the evidence didn’t establish she “had a reasonable opportunity to observe” the underage victim as required by 18 U.S.C. § 1591(c). The Circuit affirms the district court’s denial of the Rule 29 motion. Almonte, 2020 WL 1056786 at *1.
Section 1591(c) states that in a prosecution for sex trafficking under § 1591(a)(1), “in which the defendant had a reasonable opportunity to observe the [underage victim] . . ., the Government need not prove that the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of 18 years.” 18 U.S.C. § 1591(c). According to the Circuit, under § 1591(c), “if the defendant engaged in a sex trafficking act listed in Section 1591(a)(1) involving a victim under 18 years old, the government need not prove that the defendant knew or recklessly disregarded the victim’s age as long as it proves that ‘the defendant had a reasonable opportunity to observe’ the victim.” Almonte, 2020 WL 1056786 at *1 (quoting § 1591(c)) (emphasis added).
Here, the defendant argued that the evidence was insufficient to show that she had a “‘reasonable opportunity to observe’ the victim who was under 14 years old (‘JF’).” 2020 WL 1056786 at *1 . In particular, she argued that the evidence didn’t demonstrate that “she could infer that JF was under 14 years old from their interactions.” Id..
The Circuit holds that § 1591(c) “imposes strict liability” regarding “the defendant’s awareness of the victim’s age, thus relieving the government’s usual burden to prove knowledge or reckless disregard of the victim’s underage status under § 1591(a).” Id..
All that is required is proof the defendant had a “reasonable opportunity” to observe the underage person and assess their age. Here, the evidence was “sufficient for the jury to conclude that [the defendant] had a reasonable opportunity to observe JF.” Id. at *2. She “met JF in person at least twice, and those interactions enabled [her] to make her own assessment of JF’s age.” The defendant testified that she “thought JF looked ‘pretty young.’” Id.
2. Reasonableness of sentence (procedural/substantive)
Procedural reasonableness: The defendant argued that the sentence was procedurally unreasonable because the district court improperly considered her “false testimony at trial as a § 3553(a) factor” without finding that it qualified for a Guidelines adjustment for obstruction of justice under § 3C1.1 of the Sentencing Guidelines. Id. at *2.
Under § 3C1.1, an enhancement (of two levels) based on the defendant’s giving perjured testimony requires the court to apply the perjury definition the Supreme Court set out in United States v. Dunnigan, 507 U.S. 87, 95 (1993); see also United States v. Norman, 776 F.3d 67, 84 (2d Cir. 2015) (applying Dunnigan ). The court must “find that the defendant 1) willfully 2) and materially 3) committed perjury, which is (a) the intentional (b) giving of false testimony (c) as to a material matter.” United States v. Pena, 751 F.3d 101, 105 (2d Cir. 2014). “In other words, before imposing the adjustment, the district court must find that the defendant consciously act[ed] with the purpose of obstructing justice. The intent to obstruct must be unambiguous. The enhancement may not be imposed if the false testimony may have been a result of confusion, mistake, or faulty memory.” Pena., 751 F.3d at 105 (citations and quotation marks omitted).
Here, the district court didn’t go through the rigors of the above analysis, but concluded the defendant’s testimony was perjury and used it as a § 3553(a) factor. But it did so in the context of imposing a substantially below-Guidelines sentence.
The defendant’s Guidelines range was life imprisonment, without any § 3C1.1 enhancement. The court imposed a below-Guidelines sentence of 20 years: 5 years above the statutory minimum of 15 years. The Circuit noted that the “government did not request that [the] offense level be increased for obstruction of justice pursuant to Guidelines § 3C1.1 [and] the presentence report … did not recommend such an adjustment[.]” 2020 WL 1056786 at *2. (Again, the Guidelines range was life imprisonment). So the district court wasn’t required to conduct the Guidelines analysis for its perjury finding because “[t]here is no requirement that the court, in calculating the defendant’s Guidelines-recommended range, sua sponte consider every conceivably applicable guideline.” Id.
And it wasn’t procedurally unreasonable for the court to use the alleged perjury as a § 3553(a) factor when it imposed a below-Guidelines sentence. “The defendant’s commission of perjury” is a relevant consideration under § 3553(a). Id. at *3. “Accordingly, the fact that there has been no suggestion that the defendant’s perjury warrants an increase in her advisory-Guidelines offense level does not impede the court’s consideration of that perjury in determining an appropriate sentence in accordance with § 3553(a).” Id. at *3.
Substantive reasonableness: The Circuit also rejects defendant’s argument that her below-Guidelines sentence of 20 years was substantively unreasonable. The defendant’s arguments “emphasiz[ed] the substantial mitigating factors in her case,” id., which included a brutal childhood and her being forced into prostitution.
The Circuit states that although “the mitigating factors in [the defendant’s] case are significant,” the weight that a district court gives mitigating/aggravating factors is discretionary, “with appellate courts seeking to ensure only that a factor can bear the weight assigned it under the totality of circumstances in the case.” Id.. The Circuit also rejects the defendant’s argument about a sentencing disparity between her and a co-defendant.
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