U.S. v. Young

• Citation: 590 F.3d 467
• Decision Date: 23 December 2009
• Docket Number: No. 08-2357.,08-2357.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bok YOUNG, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

590 F.3d 467

UNITED STATES of America, Plaintiff-Appellee, v. Bok YOUNG, Defendant-Appellant.

No. 08-2357.

United States Court of Appeals, Seventh Circuit.

Argued February 27, 2009.

Decided December 23, 2009.

Thomas S. Ratcliffe (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

James E. Foster (argued), Funk & Foster, Hammond, IN, for Defendant-Appellant.

Before MANION, ROVNER, and TINDER, Circuit Judges.

ROVNER, Circuit Judge.

Bok Young helped to run a day spa in Highland, Indiana, at which she and other workers provided sexual massages to spa customers. She was arrested when the spa was raided by local and federal agents. Young eventually pleaded guilty to conspiring to use the facilities of interstate commerce to facilitate prostitution, see 18 U.S.C. §§ 371 and 1952(a)(3), and the district court ordered her to serve a prison term of eighteen months, the minimum term called for by the Sentencing Guidelines. Young appeals, contending that the district court made two errors in calculating her Guidelines range: characterizing Young's role in the offense as that of a manager or supervisor, see U.S.S.G. § 3B1.1(b) and (c), and treating Young's co-workers as victims whom she had enticed to engage in prohibited sexual conduct, see U.S.S.G. § 2G1.1(d). Young also argues that the court failed to give meaningful attention to the mitigating factors she cited as a basis for a lower sentence, and that the sentence imposed by the court is unreasonable. We affirm.

I.

The Barley Spa in Highland, Indiana was one of four day spas in Highland and Dyer, Indiana that came under investigation in the autumn of 2005 by the police departments of those two towns along with the U.S. Internal Revenue Service, the Federal Bureau of Investigation, and Immigration and Customs Enforcement. Sun Cha Thompson owned three of the four spas, including the Barley Spa. On February 22, 2006, agents executed search warrants at all four spas. Present at the Barley Spa when agents searched it were Young and two other employees: Pok Sun Palmer, who cleaned the spa and cooked meals for its customers, and Soon Ja Kim, who provided massages. Palmer and Kim had been working at the spa for a matter of weeks. Young had been working there for approximately six months.

The Barley Spa offered its customers standard massages, but for customers willing to pay a bit more, its masseuses were willing to provide masturbation. Young would later state at her change-of-plea hearing that customers were charged an entry fee of $50 for 30 minutes or $70 for an hour of nonsexual massage. Customers interested in a sexual massage typically paid an extra "tip" of between $20 to $60; the amount of the tip, if any, was up to the customer. The masseuses kept whatever tips their clients paid them for their massages and were not otherwise paid wages by the spa. The spa in turn made its money from the fees that customers paid to enter the spa. Young estimated that at least seventy-five percent of the spa's customers were interested in sexual massages.

Thompson had hired Young in August of 2005 to handle the spa's day-to-day operations, including its bookkeeping. Young was to pay Thompson $1,000 per month out of the spa's receipts; from the remainder, she was to pay herself a salary of $3,000 per month (although Young would later say that the proceeds were never sufficient to pay herself that much). Following Young's engagement, the spa's accountant wrote a memorandum indicating that Young would be replacing Thompson as the individual "run[ning] things" at the spa. R. 244 at 33. Within a couple of months, Thompson was no longer directly involved with the daily operation of the spa and visited the premises no more than once a week. Young collected the daily proceeds, paid the spa's bills, made sure that the ledger of the spa's business was in order for Thompson's occasional review, took out advertisements, paid the cook her daily wages, hired new employees, bought groceries for the employees (who lived at the spa), and kept Thompson apprised of any personnel issues. Young looked into Palmer's immigration status before hiring her as the spa's cook and housekeeper shortly before the raid, and when Palmer began work, it was Young who showed her around the spa and instructed her on her responsibilities. Like the spa's other employees (excepting Palmer), Young did provide sexual massages to the spa's clients. But Young was the sole employee charged with managing the spa's day-to-day operations. There was also evidence that when customers arrived, Young decided which of the other masseuses would provide them with services. Kim, a masseuse who was present at the time of the raid, would later state that Young was "in control of everything" at the spa. R. 244 at 72.

In view of Young's responsibilities, the district court found that she qualified as a manager or supervisor of the criminal activity that took place at the spa, thus triggering a two-level increase in her sentencing level pursuant to section 3B1.1(c) of the Guidelines. The court noted, among other factors, that Thompson's degree of involvement with the spa decreased after Young was hired, that Young received a salary in contrast to the other women who provided sexual massages and were compensated by the "tips" they received for those services, that she wrote checks on behalf of the spa (including her own paycheck), and that Young described her own role as that of manager in paperwork she completed for an advertisement in a telephone directory and during an interview that agents conducted in the immediate aftermath of the raid on the spa. R. 293 at 12-18. The court added that even if Young did not qualify as a manager or supervisor of the other participants in the spa's criminal activity, she did "exercise[ ] management responsibility over the property[,] assets[,] and activities of the criminal organization," which the Sentencing Commission's advisory notes recognize as a basis for a longer sentence. R. 293 at 18; see § 3B1.1, comment. (n.2)

The court concluded that a second, "pseudo count" enhancement was warranted based on Young's role in enticing the other women at the spa to engage in illegal sexual conduct. See § 2G1.1(d). When a defendant has been convicted of an offense involving the promotion of commercial sex acts or other prohibited sexual conduct and multiple victims, section 2G1.1(d) instructs the court to calculate the defendant's offense level as if the defendant had been convicted of a separate count for each victim. Because offenses of this nature are not grouped together for sentencing purposes, see U.S.S.G. §§ 2G1.1, comment. (n.5) & 3D1.2, additional counts of conviction trigger an increase in the defendant's combined offense level, see U.S.S.G. § 3D1.4. There were multiple masseuses who worked at the Barley Spa during Young's tenure, and because their sole source of pay was the "tips" they received for sexual massages, the court treated them as victims of the offense in the sense that they were "enticed" into engaging in commercial sex acts. Based on those victims, the court deemed Young to have been convicted of one additional "pseudo" count, which resulted in a two-level increase in her offense level. R. 293 at 20-22.

Young's adjusted offense level, together with her lack of a prior criminal record, called for a sentence in the range of 18 to 24 months. In a written sentencing memorandum, Young's counsel highlighted a variety of mitigating factors and asked for a "minimal sentence." R. 221 at 6. At the final sentencing hearing, Young's counsel urged the court to impose a below-Guidelines sentence of probation, noting that Thompson, the owner of the spa, had received a term of twenty-seven months and Thompson's silent partner and investor had received probation, that Young had been on work release, which he characterized as "basically home arrest" for the preceding two years, R. 293 at 31, and that Young would not be aided by going to prison. R. 293 at 26-32. The district court did not specifically address the various mitigating factors that Young's counsel had cited. However, the court did acknowledge its obligation to consider the sentencing factors set forth in 18 U.S.C. § 3553(a) in addition to the Guidelines in deciding "what a reasonable sentence would be." R. 293 at 37.

The court then explained why it had concluded that a sentence at the low end of the Guidelines range was appropriate for Young:

[I]n this case I think, if anything, the [G]uidelines are light, but I think they're light, Ms. Young, in large part because you're given the benefit of the doubt with regards to several portions of the [G]uidelines. But when there was any question that I felt to be close enough, I would give you the benefit of the doubt. When there was a question regarding an enhancement, although in some cases I felt that it might be justified, again, I gave you the benefit of the doubt.

When I first sat down to consider a sentence in this case, I thought a sentence at 24 months would be a reasonable sentence. In listening to your attorney, I think that I should relook at that number. I have looked at the probation officer's recommendations and the comments from the Government. I have rethought that sentence, and then I looked at the Guidelines again, and I have decided upon the following sentence....

R. 293 at 37. The court proceeded to sentence Young to a term of eighteen months.

II.

A. Enhancement for Leadership Role in the Offense

For offenses involving multiple participants, section 3B1.1 of the Sentencing Guidelines provides for aggravating-role enhancements based on the number of participants involved in the criminal activity and the defendant's relative responsibility for committing the offense. The guideline specifies (a) a four-level enhancement for a defendant who qualifies as an "organizer or leader" of criminal activity involving five or more participants...