U.S. v. Hill

Decision Date12 January 2009
Docket NumberNo. 08-1364.,08-1364.
Citation552 F.3d 686
PartiesUNITED STATES of America, Appellee, v. Brandon K. HILL, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

John Michael Lynch, argued, St. Charles, MO, for appellant.

Howard J. Marcus, AUSA, argued, St. Louis, MO, for appellee.

Before RILEY, BRIGHT, and MELLOY, Circuit Judges.

RILEY, Circuit Judge.

Brandon K. Hill (Hill) pled guilty to one count of knowingly and willingly enticing an adult female to travel in interstate commerce for purposes of prostitution, in violation of 18 U.S.C. § 2422(a). Hill's advisory Guidelines range was 15-21 months. The district court1 found the Guidelines range was insufficient to achieve an appropriate sentence, and an upward variance was warranted. The district court sentenced Hill to 51 months imprisonment, to run consecutively to a 174-month sentence Hill was already serving in the Western District of Oklahoma. Hill appeals, arguing the district court procedurally erred by failing to explain adequately the basis for its sentencing decision and by comparing Hill's offense to other sex crimes. Hill also argues the 51-month sentence was substantively unreasonable. We affirm.

I. BACKGROUND

Hill met the 19-year-old victim, S.S., at a gas station in Hazelwood, Missouri, in December of 2004. Some months later, Hill bought a plane ticket so S.S. could fly to Dallas, Texas, to meet Hill. Hill told S.S. he was a pimp. S.S. left Dallas, but returned to Dallas in March of 2005 and began to work as a prostitute for Hill. S.S. traveled to Philadelphia, Pennsylvania; San Antonio, Texas; Austin, Texas; Raleigh, North Carolina; Milwaukee, Wisconsin; Kansas City, Missouri; Kansas City, Kansas; and St. Louis, Missouri, to work as a prostitute for Hill. S.S. turned over all of her prostitution proceeds to Hill.

Between August 2, 2005, and August 10, 2005, Hill induced S.S. to travel to Overland Park, Kansas, to work as a prostitute. Hill then induced S.S. to travel from Overland Park, Kansas, to St. Louis, Missouri, to work as a prostitute. S.S. was arrested in St. Louis, Missouri, for possession of marijuana by Maryland Heights Police. Police officers searched S.S.'s cell phone memory and found numbers, photos of Hill, and extensive text messages between S.S. and Hill. These messages discussed travel, prostitution, and the proceeds of the prostitution. Hill was charged with a single count of knowingly and willingly enticing an adult female to travel in interstate commerce for purposes of prostitution. See 18 U.S.C. § 2422(a). Hill admitted his involvement and pled guilty.2

The court and the parties agreed Hill had a total offense level of 12 and a criminal history category of III, resulting in an advisory Guidelines range of 15 to 21 months. At Hill's sentencing hearing, the court considered Guideline departures under §§ 5K2.3 (extreme psychological injury) and 5K2.8 (extreme conduct), but determined there was no evidence to support either of these departures. However, the district court disagreed with the Guidelines range for Hill's offense and found the factors set forth in 18 U.S.C. § 3553(a) warranted an upward variance. The district court declared:

I do find, under 18 U.S.C. 3553(a), when I look at deterrence, the repetition of the activity and the fear that it will be repeated, and to protect the public from future crimes, and to avoid unwanted [sic] sentencing disparities, that a sentence of 51 months is an appropriate sentence to satisfy the statutory purposes of sentencing.

... The sentence is to run consecutive to the sentence he's currently serving in the Western District of Oklahoma[.]

At Hill's sentencing, the district court acknowledged, "I have to be candid. I probably came as close to falling out of my chair as I ever have as a federal judge when I saw the recommended range of punishment on Mr. Hill's case for a violation of the Mann Act for moving a woman across multiple state lines for the purpose of prostitution." The district court compared and contrasted Hill's offense and Guidelines range with sentences the court had imposed on other defendants for possession of child pornography, declaring,

I've given out sentences for possession—not manufacturing, not distribution, not transportation—of child pornography of up to 237 months.

Here is an actual person being used in prostitution by [Hill], being moved across state lines for the purposes of prostitution, and the guidelines recommend a sentence of 15 to 21 months? I'm having a hard time putting that in context under unwanted [sic] sentencing disparities.

I know they're not the same, but here we're dealing with a real person who's in prostitution. [Hill] is keeping the proceeds of that money.

Shortly thereafter, the district court reiterated:

So I have on one hand a series of sentences that happen much more frequently where we sentence someone to prison for downloading pictures off the internet. As awful as they are, they're downloading photographs. Here we have an individual who actually had a woman in essence in servitude serving as a prostitute for his monetary benefit. And I need some help in where to put this in context of the nature of federal sentencing.

I think the whole panoply of 3553(a) is open for discussion, and I would like to hear that discussion so I can best determine what to do today.

The court clarified that it recognized Hill's victim was not a juvenile, and the purpose of the court's comparison between child pornography and Hill's offense was because "we don't see many Mann Act cases in federal court[,]" and child pornography is "the most common sex-related crime that the federal courts deal with." The court explained, "[s]o I was trying to put [Hill's offense] in context and calibrate it appropriately."

The court later compared Hill's Guidelines range to financial crimes, stating, "This is the kind of guideline range I would typically see from a credit card scam, and I don't think I can compare the two," and "[Hill's Guidelines range] looks more like a credit card identity theft case than it does a Mann Act, you know, subjecting a woman to prostitution across state lines type of case." The court also compared Hill's Guidelines range to that of a drug offender, saying, "You know, 5 grams of crack cocaine gets you an automatic 60 months in the federal penitentiary."

Ultimately, the court found "that under 3553(a) the guideline range here that is recommended is not appropriate given the total circumstances of this case when I compare and contrast them to all these other cases." The court explained, "I'm just convinced that the guidelines are wrong here, given the human effects here of a woman in prostitution exposed to health risk, sexually transmitted diseases, and she's turning over her proceeds to another person. And those aren't just common sense. I don't think we can argue about those facts."

Hill argues the district court procedurally erred in imposing the 51-month sentence because the district court (1) did not adequately explain the reason for the variance, and (2) improperly compared Hill's crime with other crimes, primarily child pornography. Hill also argues the 51-month sentence was substantively unreasonable.

II. DISCUSSION
A. Standard of Review

The first step in reviewing a sentence is to "ensure that the district court committed no significant procedural error." Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Examples of procedural error include: "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." Id.

Hill failed to object at sentencing to any alleged procedural sentencing error. "If a defendant fails to object timely to a procedural sentencing error, the error is forfeited and may only be reviewed for plain error." United States v. Vaughn, 519 F.3d 802, 804 (8th Cir.2008) (citing United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc); United States v. Guarino, 517 F.3d 1067, 1068-69 (8th Cir. 2008)). "Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights." Id. (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); Fed. R.Crim.P. 52(b)). Even if the defendant shows these three conditions are met, we "may exercise [our] discretion to correct a forfeited error only if it `seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" Id. at 804-05 (quoting Johnson, 520 U.S. at 467, 117 S.Ct. 1544, in turn quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

If we determine the district court committed no plain procedural error that affected Hill's substantial rights and seriously affected the fairness, integrity, or public reputation of Hill's sentencing, we will "then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard ..., tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range." See Gall, 128 S.Ct. at 597. "In contrast to procedural errors, a defendant does not forfeit an attack on the substantive reasonableness of a sentence by failing to object in the district court." Vaughn, 519 F.3d at 805 (citation omitted).

Although "[we] may consider the extent of the deviation, [we] must give due deference to the district court's decision that the § 3553(a) factors, on the whole, justify the extent of the variance." Gall, 128 S.Ct. at 597. "The sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case." Id. (...

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