United States v. Garcia-Gonzalez

Citation714 F.3d 306
Decision Date17 April 2013
Docket NumberNo. 11–41097.,11–41097.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Beleal GARCIA–GONZALEZ, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

OPINION TEXT STARTS HERE

Demetra Daniel Lambros, U.S. Department of Justice, Criminal Division, Washington, DC, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for PlaintiffAppellee.

Steven Jeffrey Lieberman, James Max Kennedy, Bires, Schaffer & DeBorde, Houston, TX, for DefendantAppellant.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Beleal Garcia–Gonzalez (Garcia) appeals his conviction and sentence of 360 months of imprisonment and $600 in assessment fees, challenging: (1) the propriety of a supplemental jury instruction and the sufficiency of the evidence in support of his jury convictions on three counts of child sex trafficking; (2) the calculation of his sentence under the U.S. Sentencing Guidelines; and (3) three of his six convictions for alien harboring on multiplicity grounds. We AFFIRM.

I.

This case involves four of eleven illegal female aliens (C.M., B.Y., D.L., and R.J.), who were smuggled under false pretenses from Honduras into the United States to work in Garcia's bar, and tend to his customers.1 Three of the girls—C.M., B.Y., and D.L.—are sisters.

In October 2009, Garcia arranged for three of the four girls—C.M. (age seventeen), B.Y. (age fifteen), and R.J. (age fifteen)—to be transported illegally from Honduras into the United States. The girls were escorted from Honduras by other men, with no money and only the clothes on their backs. The girls were told that they would be working in a restaurant in the United States. After reaching the United States, the girls were brought to Garcia's house. The day that they arrived, Garcia took the girls shopping to buy revealing clothing and told them that they would be working and tending to customers at his bar.

Garcia promised the girls $20 a night in wages. As part of the job, the girls had to “drink” with the customers. If a customer wanted to sit with a girl, he had to buy her a beer for $6, of which the girl would earn $3. The girls received a ticket for each beer purchased for them, and they turned in the tickets at the end of the week for payment. Garcia never paid C.M. and B.Y. earnings for their tickets or their nightly wages. Garcia kept the money and applied it to the $4,500 smuggling debt that they “owed” him and to the cost of the clothes he bought them. Garcia told the girls that the only way they could earn money to keep for themselves was through having sex with his customers. In total, C.M. had sex for pay with six customers, B.Y. had sex for pay with two customers, and R.J. did not have sex with any customers.

The fourth girl, D.L. (age fourteen), was smuggled into the United States illegally a few weeks after her older sisters—C.M. and B.Y.—under the same trafficking scheme and false pretenses. Garcia told D.L. that she had to drink with customers, promised her the same $20 nightly wage and $3 for each drink, and kept and applied all earned wages to her smuggling debt. Similar to the other girls, Garcia told D.L. that having sex with customers was the only way for her to make money to keep. Although D.L. did not have sex for pay with any customer, customers touched her inappropriately at the bar.

At first, the four girls lived at Garcia's house with other girls who had been smuggled into the United States illegally, where Garcia and his employees constantly monitored them. The girls were not allowed to leave the house without Garcia's permission, and needed to be supervised by Garcia or one of his employees when they left. Garcia told the girls that he would look for them and harm their families if they escaped. He kept guns in the house, and pointed one at D.L. on at least one occasion. At a later date, the girls moved into a different house with one of Garcia's employees, who subjected them to the same monitoring. Eventually, law enforcement discovered and disbanded the illegal smuggling operation.

Garcia was charged with three counts of child sex trafficking, in violation of 18 U.S.C. § 1591(a)(1), one count of conspiring to harbor illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I), and six counts of alien harboring, in violation of § 1324(a)(1)(A)(iii). During a four-day jury trial, the government built its case around the testimony of numerous witnesses, including C.M., B.Y., D.L., and R.J. The jury convicted Garcia on all counts. The district court adopted the factual findings in the Presentence Investigation Report (“PSR”) and sentenced Garcia to 360 months on the child-sex-trafficking counts and 120 months on the alien-harboring counts, all to run concurrently, and a $100 assessment fee for each alien-harboring count. Garcia timely appealed.

II.
A.

Garcia's first claim on appeal challenges the propriety of a supplemental jury instruction and the sufficiency of the evidence in support of his convictions for three counts of sex trafficking.2 We first address the jury instruction issue. We typically review jury instructions for abuse of discretion, but when, as here, “a jury instruction hinges on a question of statutory construction, this court's review is de novo. United States v. Wright, 634 F.3d 770, 774 (5th Cir.2011) (emphasis added).

The jury instructions correctly stated the three essential elements of child sex trafficking under § 1591(a): (1) “that the defendant knowingly recruited, enticed, harbored, transported, obtained or maintained [the victim];” (2) “that the recruiting, enticing, harboring, transporting, providing, obtaining or maintaining of [the victim] was in or affecting interstate or foreign commerce,” and (3) that “the defendant committed such act knowing or in reckless disregard of the fact ... that [the victim] was under the age of 18 years of age and would be caused to engage in a commercial sex act.” After providing these instructions, Jury Note Number 1 asked whether a sex act had to occur to find Garcia guilty of child sex trafficking under § 1591(a). Over Garcia's objection, the district court answered no.

Garcia argues that the supplemental jury instruction modified the essential elements of the child-sex-trafficking offense and confused the jury. The government counters that the instruction was proper.

The plain text of § 1591(a) supports the government's position. The text provides that “... the person has not attained the age of 18 years and will be caused to engage in a commercial sex act.” § 1591(a). The future verb tense of the phrase “will be caused”—which precedes “to engage in a commercial sex act”—indicates that a sex act does not have to occur to satisfy the elements of the child-sex-trafficking offense. To conclude otherwise erases the meaning of “will be” from the statutory text. See White v. Black, 190 F.3d 366, 368 (5th Cir.1999) (citation omitted) (explaining that we must “give words their ordinary meaning and ... not render as meaningless the language of a statute); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (1st ed. 2012) (discussing the “surplusage canon” of construction, which provides that [i]f possible, every word and every provision is to be given effect”).3

Next, we turn to the sufficiency of the evidence in support of Garcia's convictionson three counts of child sex trafficking, each of which involves a specific underage female victim (Count 1—C.M., Count 2—D.L., and Count 3—B.Y.). Garcia only disputes elements one and three of each count. Because Garcia moved for a judgment of acquittal at the close of the government's case, the panel reviews de novo the question of whether the evidence was sufficient to support his conviction. See United States v. Xu, 599 F.3d 452, 453 (5th Cir.2010). We view “the evidence in the light most favorable to the prosecution,” and consider whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis removed).

We conclude that the evidence was sufficient to support Garcia's convictions on all three counts of child sex trafficking under § 1591(a). As to Counts 1 and 3 (involving C.M. and B.Y.), a rational trier of fact could have found that the government satisfied the essential elements of the child-trafficking offense after crediting witness testimony establishing that: Garcia arranged for C.M. and her sister, B.Y., to leave Honduras with no money or clothes besides what they were wearing, under false pretenses that they would be working in a restaurant. C.M. was seventeen years old and B.Y. was fifteen years old when they were smuggled into the United States. On the day that C.M. and B.Y. arrived in United States, Garcia took them to buy revealing clothing for their jobs in his bar, where customers paid for the sisters to drink alcohol. Garcia kept and applied all wages earned to the sisters' smuggling debt. Garcia and his employees constantly monitored the sisters, and Garcia threatened that he would harm the sisters' family if they tried to escape. C.M. testified that Garcia told her that the only way she could make money was through having sex with customers. Garcia proposed that the sisters engage in prostitution, told them how much to charge for sex, and arranged the sexual encounters. From this evidence, a rational trier of fact could have concluded that Garcia knowingly harbored C.M. and B.Y., and created a situation in which he knew, or at the very least, recklessly disregarded, that his actions would cause C.M. and B.Y. to engage in prostitution with his customers. 4

As to Count 2 involving D.L., we conclude that a rational trier of fact could have found that the...

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