United States v. Washington

• Decision Date: 28 February 2014
• Docket Number: No. 13–4132.,13–4132.
• Citation: 743 F.3d 938
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Dwane WASHINGTON, a/k/a Cisco, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

743 F.3d 938

UNITED STATES of America, Plaintiff–Appellee,

v.Dwane WASHINGTON, a/k/a Cisco, Defendant–Appellant.

No. 13–4132.

United States Court of Appeals,Fourth Circuit.

Argued: Dec. 12, 2013.

Decided: Feb. 28, 2014.

ARGUED:James Brian Donnelly, J. Brian Donnelly, P.C., Virginia Beach, Virginia, for Appellant. Brian R. Hood, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, Office of the United States Attorney, Alexandria, Virginia; Christopher W. Bascom, Third Year Law Student, University of Richmond Law School, Richmond, Virginia, for Appellee.

Before TRAXLER, Chief Judge, and DIAZ and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Chief Judge TRAXLER and Judge FLOYD joined.

DIAZ, Circuit Judge:

A jury convicted Dwane Washington of violating 18 U.S.C. § 2423(a), which prohibits the interstate transportation of a minor with the intent that the minor engage in prostitution or other criminal sexual activity. He was sentenced to 240 months' imprisonment. Washington challenges his conviction, arguing that § 2423(a) requires the government to prove that he knew his victim was underage. He also contends that the district court abused its discretion by imposing an upward variance. For the reasons that follow, we affirm.

I.

On appeal from a criminal conviction, we recite the facts in the light most favorable to the government. United States v. Smith, 701 F.3d 1002, 1004 (4th Cir.2012).

A.

In the spring of 2012, Washington, then thirty-two years old, met R.C., a fourteen-year-old runaway. Washington approached R.C. on a street in Maryland, where she had already begun engaging in prostitution and using drugs. Almost immediately, he became her pimp. At some point, R.C. told Washington that she was nineteen years old. Washington took R.C. to Nashville and Clarksville, Tennessee; Birmingham and Huntsville, Alabama; and Richmond, Virginia. In each city, Washington used the internet to advertise R.C. as a prostitute. He developed a pricing scale and kept nearly all of the proceeds, which he used to pay for food, lodging, travel, and drugs. Washington also had sex with R.C. on multiple occasions.

In Birmingham, R.C. was arrested and charged with prostitution. She gave the police a false name and date of birth, claiming that she was nineteen years old.

Washington and R.C. were later arrested in Richmond in an FBI sting operation. During an interview with an FBI agent, R.C. confirmed that Washington was her pimp.

B.

A grand jury charged Washington with the interstate transportation of a minor with the intent that the minor engage in prostitution or other criminal sexual activity, in violation of 18 U.S.C. § 2423(a). At trial, the district court instructed the jury that “the government d[id] not have to prove that the defendant knew that the individual he transported across state lines was under the age of 18 at the time she was transported” in order to convict him under § 2423(a). J.A. 376. As the district court explained, “the defendant's knowledge of the age of the individual he transported is not part of the proof required by the government in order to sustain a conviction....” Id. at 377. The jury subsequently found Washington guilty.

After the guilty verdict, the district court filed the following presentencing notice: “The Court is hereby placing the parties on notice that the Court will consider sentencing Mr. Washington outside of the guideline range. Specifically, at the sentencing hearing, the Court will consider sentencing Mr. Washington above the guideline range up to the statutory maximum.” J.A. 411.

The presentence investigation report (the “PSR”) subsequently calculated an offense level of 30, a criminal history category of IV, and a resulting advisory Guideline sentencing range of 135 to 168 months' imprisonment. Prior to sentencing, the government moved for an upward departure and a variance, seeking a sentence between 188 and 235 months.

At Washington's sentencing hearing, the district court stated that it would not impose an upward departure but was considering a variance, and it then permitted the parties to address the issue. Afterward, the court discussed the 18 U.S.C. § 3553(a) factors and decided to impose an upward variance. Ultimately, the court sentenced Washington to 240 months' imprisonment.

II.

The issues before us on appeal are twofold: (1) whether the district court erred in instructing the jury that the government did not have to prove that Washington knew R.C. was a minor, and (2) whether the court erred by imposing an upward variance. We consider each question in turn.¹

A.

Washington first challenges the jury instruction that the government was not required to prove that he knew R.C. was underage. We review de novo a claim that a jury instruction did not correctly state the applicable law. United States v. Mouzone, 687 F.3d 207, 217 (4th Cir.2012), cert. denied,––– U.S. ––––, 133 S.Ct. 899, 184 L.Ed.2d 697 (2013).

Section 2423(a) of Title 18 provides:

A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life.

Washington argues that the term “knowingly” in § 2423(a) applies to the clause “who has not attained the age of 18 years,” thereby requiring the government to prove that he knew R.C. was a minor. He acknowledges that we rejected this argument in United States v. Jones, 471 F.3d 535, 541 (4th Cir.2006), which held that “under § 2423(a) the government is not required to establish the defendant's knowledge of the alleged victim's age.” Nevertheless, Washington asserts that Jones is no longer good law after the Supreme Court's decision in Flores–Figueroa v. United States, 556 U.S. 646, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009).

In Jones, we explained that “the adverb ‘knowingly’ modifies the verb ‘transports' ” because “[a]dverbs generally modify verbs, and the thought that they would typically modify the infinite hereafters of statutory sentences would cause grammarians to recoil.” 471 F.3d at 539. In our view, requiring knowledge of the act of transporting the victim—not knowledge of the victim's age—was “[a] more natural reading of the statute.” Id. (internal quotation marks omitted).

But Jones did not rely on the text of § 2423(a) alone. Rather, our interpretation was also supported by § 2423(a)'s more general counterpart, 18 U.S.C. § 2421. See id. That provision punishes “[w]hoever knowingly transports any individual in interstate or foreign commerce ... with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.” ²§ 2421. As a textual matter, the only differences between the two statutes are that § 2421 does not include an age element and imposes a lesser punishment.

In Jones, we noted that it would be implausible for the knowledge requirement in § 2421 to modify the noun “individual.” 471 F.3d at 539. And we concluded that it would be similarly “implausible to suggest that, in § 2423(a), where the noun ‘individual’ is modified by the clause ‘who has not attained the age of 18 years,’ the term ‘knowingly’ suddenly applie[d] to both the noun and its dependent clause.” Id. Grammar problems aside, we deemed it “unlikely that, in providing extra protection for minors in § 2423(a), Congress intended to make the evidentiary burdens of that provision disproportionate to those of § 2421.” Id.

Finally, we explained that only our interpretation was consistent with congressional intent. Id. at 540. “Under § 2423(a), the fact that the individual being transported is a minor creates a more serious crime in order to provide heightened protection against sexual exploitation of minors.” Id. (internal quotation marks omitted). The defendant's view of the statute, on the other hand, “would strip [it] of its clear purpose: the protection of minors.” Id. Indeed, “[i]mposing such a mens rea requirement would be tantamount to permitting adults to prey upon minors so long as they cultivate ignorance of their victims' age.” Id. For these reasons, we held in Jones that “under § 2423(a) the government is not required to establish the defendant's knowledge of the alleged victim's age.” Id. at 541 (emphasis added).

Washington contends that Flores–Figueroa undermines our analysis in Jones. We disagree. In Flores–Figueroa, the Supreme Court considered an aggravated identity theft conviction under 18 U.S.C. § 1028A(a)(1). See556 U.S. at 647, 129 S.Ct. 1886. That statute punishes an individual who, while committing other enumerated crimes, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” 18 U.S.C. § 1028A(a)(1) (emphasis added). The question presented was “whether the statute requires the Government to show that the defendant knew that the ‘means of identification’ he or she unlawfully transferred, possessed, or used, in fact, belonged to ‘another person.’ ” Flores–Figueroa, 556 U.S. at 647, 129 S.Ct. 1886. The Court concluded that it does. Id. It reasoned that “[a]s a matter of ordinary English grammar, it seems natural to read the statute's word ‘knowingly’ as applying to all the subsequently listed elements of the crime.” Id. at 650., 129 S.Ct. 1886

Nevertheless, the Court did not purport to establish a bright-line rule that a specified mens rea always applies to every element of the offense. Instead, it approvingly cited Justice Alito's concurrence for the proposition that “the inquiry into a sentence's meaning is a contextual one.” Id. at 652, 129 S.Ct. 1886. The majority noted...