United States v. Hornbuckle

• Citation: 784 F.3d 549
• Decision Date: 21 April 2015
• Docket Number: Nos. 12–10541,12–10615.,s. 12–10541
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tynisha Marie HORNBUCKLE, aka My Nookie, aka Nene, aka No Feelings, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Tamrell Rena Hornbuckle, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

784 F.3d 549

UNITED STATES of America, Plaintiff–Appellee

v.Tynisha Marie HORNBUCKLE, aka My Nookie, aka Nene, aka No Feelings, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Tamrell Rena Hornbuckle, Defendant–Appellant.

Nos. 12–10541

12–10615.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2015.

Filed April 21, 2015.

Bruce Locke (argued), Moss & Locke, Sacramento, CA, for Defendant–Appellant Tynisha Marie Hornbuckle.

Erin Jolene Radekin (argued), Law Office of Erin Radekin, Sacramento, CA; Hayes H. Gable, III, Law Office of Hayes H. Gable, III, Sacramento, CA, for Defendant–Appellant Tamrell Rena Hornbuckle.

Camil A. Skipper (argued), Assistant United States Attorney, Appellate Chief; Benjamin B. Wagner, United States Attorney; Kyle Reardon and Matthew C. Stegman, Assistant United States Attorneys, Eastern District of California, Sacramento, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Eastern District of California, Morrison C. England, Jr., Chief District Judge, Presiding. D.C. Nos. 2:11–cr–00327–MCE–1, 2:11–cr–00327–MCE–2.

Before: WILLIAM A. FLETCHER, ANDRE M. DAVIS^* , and MORGAN CHRISTEN, Circuit Judges.

OPINION

CHRISTEN, Circuit Judge:

Tynisha and Tamrell Hornbuckle are sisters who each pleaded guilty to two counts of sex trafficking of children under 18 U.S.C. § 1591. They challenge their sentences in these consolidated appeals. The district court held an extensive evidentiary hearing and sentenced Tynisha to 188 months and Tamrell to 151 months in prison.¹ The sentences included enhancements under U.S.S.G. § 2G1.3(b)(4)(A), because sex acts were actually committed by the minors, and under U.S.S.G. § 2G1.3(b)(2)(B), for undue influence. The sisters appeal the application of both enhancements. We affirm.

BACKGROUND

I. Facts

From 2008 to 2011, Tynisha and Tamrell ran a prostitution ring with the help of their siblings Latrelle and Cherrelle Hornbuckle and their mother Tammy Brown. Tynisha and Tamrell, who were then in their twenties, acted as pimps who made money off adult and child prostitutes. These appeals arise from their interactions with three underage victims: P.H., who was 13 when she started working for the Hornbuckles; A.Hi., who was approximately 15 or 16; and A.He., who was 17. Tynisha primarily managed the underage prostitutes while Tamrell managed the adults, but on occasion Tamrell also arranged “dates” for the minors. The three homeless minors who are the subject of this case all lived with the Hornbuckles at one point, and they often performed sex acts for clients at Latrelle and Cherrelle's home and in Tammy's garage.

P.H., A.Hi., and A.He. gave all of their earnings to Tynisha and Tamrell,² who imposed daily quotas on them. A.He. had sex with ten to fifteen clients a day. Whenever the victims said they did not want to work, Tynisha told them to “[j]ust do a few” because they had “bills to pay.” The girls generally got three to four hours of sleep per day because they were “[a]lways working.”

Tynisha hit, beat, choked, and kicked A.Hi. and P.H. for “[a]nything and everything,” such as “acting out of line” or dressing too slowly for work. P.H. in particular would get “[a]nywhere from a slap to a full-on beating” if she did not bring back enough money from a date. Tamrell also “smacked” and beat P.H. The sisters had a practice of driving to a dead-end street and having other girls hold the car doors shut while they yelled at, and “severely beat,” A.Hi. and P.H. Although Tynisha never actually hit A.He., she threatened to “kill,” “beat,” and “punch” her. On one occasion, Tynisha chased A.He. with a steak knife, promising to “beat” and “stab” her.

On April 1, 2011, a confidential source informed the FBI that the three victims were working for the Hornbuckles as prostitutes. Two undercover FBI agents set up a date with P.H., who was arrested after she agreed to the sex acts and accepted money to perform them. Tamrell arranged the transaction for P.H. and drove her to the motel. The FBI subsequently questioned Tamrell, Cherrelle, Tynisha, and A.He. A.He. corroborated the information supplied by the confidential source. Later, an undercover agent set up a date with A.Hi. and arrested her after she accepted payment to perform a sex act.

After witnessing Tynisha, Tamrell, and Latrelle beat P.H. viciously once more, A.He. agreed to assist in the FBI's investigation. In May 2011, she wore a wire and recorded Tamrell (but not Tynisha) discussing the scope of the prostitution ring, the violence inflicted on the victims, and the FBI investigation generally. The FBI also set up a fake date for A.He., from which Tamrell pocketed the earnings.

In July 2011, Tynisha and Tamrell were indicted and arrested on thirteen counts, ten of which were for sex trafficking of children under 18 U.S.C. § 1591.³ They both pleaded guilty to the two counts that pertained to the sex trafficking of A.He. and A.Hi. In exchange, the Government dropped the other charges.

II. Sentencing Proceedings

The Presentence Reports (“PSRs”) identified advisory guidelines ranges of 151 to 188 months' imprisonment for Tamrell and 188 to 235 months' imprisonment for Tynisha.⁴ These ranges included: (1) a two-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B) for undue influence as applied to two of the minors; and (2) a two-level enhancement under U.S.S.G. § 2G1.3(b)(4)(A) for actual commission of sex acts by all three minors. The Hornbuckles objected to the two enhancements. They argued in the district court, as they do on appeal, that applying § 2G1.2(b)(2)(B) was improper because they did not unduly influence the minors to engage in prostitution, and that applying § 2G1.3(b)(4)(A) constituted double counting.

Following the parties' arguments about the applicability of these enhancements, the court heard testimony from three witnesses: an adult prostitute who worked for the Hornbuckles, the Government's expert on prostitution culture, and A.He.

The district court ruled that the § 2G1.3(b)(2)(B) enhancement was appropriate because the Hornbuckles exerted undue influence over the minors to encourage them to engage in prostitution. Although the PSRs recommended the enhancement only for A.He. and P.H., the district court emphasized that it found undue influence for all three victims.⁵

The court also accepted the recommendation to apply the § 2G1.3(b)(4)(A) enhancement, ruling there was no double counting. The court concluded that a conviction under 18 U.S.C. § 1591 does not require commission of a sex act because it can be based on an exchange of money in anticipation of the sex act. The court adopted the PSRs' recommendations and imposed sentences of 188 months for Tynisha and 151 months for Tamrell.

The Hornbuckles timely appealed their sentences. We have jurisdiction under 28 U.S.C. § 1291.

STANDARD OF REVIEW

“We review the district court's interpretation of the Sentencing Guidelines de novo ... and the district court's factual findings for clear error.” United States v. Swank, 676 F.3d 919, 921 (9th Cir.2012) (internal quotation marks omitted). “We have previously noted an intracircuit conflict as to whether the standard of review for application of the Guidelines to the facts is de novo or abuse of discretion.” Id. at 921–22. We need not resolve that conflict here because as in other cases, “the choice of standard ... does not affect the outcome of this case.” See id. at 922 ; United States v. Yip, 592 F.3d 1035, 1038 (9th Cir.2010) ; United States v. Rivera, 527 F.3d 891, 908 (9th Cir.2008).

ANALYSIS

I. The district court properly applied U.S.S.G. § 2G1.3(b)(4)(A).

Impermissible double counting occurs when a court applies an enhancement for a necessary element of the underlying conviction. See United States v. Smith, 719 F.3d 1120, 1123–25 (9th Cir.2013). The Hornbuckles argue that the district court improperly applied U.S.S.G. § 2G1.3(b)(4)(A) because a conviction for sex trafficking of minors requires that the minors actually engaged in sex acts. If that had been the case, we agree the district court would have erred by applying this enhancement. But the district court did not double count this factor, and its decision to apply the enhancement was proper under either de novo or abuse of discretion review.

U.S.S.G. § 2G1.3(b) provides for “Specific Offense Characteristics” relating to crimes of “Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor.” Subsection (b)(4) provides: “If (A) the offense involved the commission of a sex act or sexual contact; or (B) subsection (a)(3) or (a)(4) applies and the offense involved a commercial sex act, increase by 2 levels.” (Emphasis added.) Case law makes clear that “commission of a sex act or sexual contact” is not an element of a conviction under 18 U.S.C. § 1591. Thus, applying subsection (b)(4)(A) did not constitute double counting.⁶

In United States v. Brooks, two appellants challenged the sufficiency of the evidence for their sex trafficking convictions under 18 U.S.C. § 1591(a). 610 F.3d 1186, 1196–97 (9th Cir.2010). Even though one of the victims never actually engaged in a sex act, we held that there was sufficient evidence to support the convictions because “the men had plans for [that victim] to be caused to engage in prostitution in the future.” Id. at 1197. We clarified that a conviction for sex trafficking of minors under 18 U.S.C. § 1591 does not require that the victim actually commit a sex act:

N.K. was not in fact caused to engage in prostitution. The jury, however, could infer that N.K. did not engage in such acts simply because she still was very affected by the drugs she took in Phoenix. Further, as we recently explained in another § 1591(a) appeal,

[w]hen an act of Congress requires knowledge of a future action, it does not require knowledge in the sense of certainty as to a future act. What the statute requires is that the defendant know in the sense of being aware of an established modus operandi

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