United States v. Jenkins

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4095

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PRESTON T. JENKINS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:03-cr-00485-JCC)

Submitted: September 29, 2006 Decided: December 1, 2006

Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Leslie S. McAdoo-Brobson, LESLIE MCADOO, CHARTERED, Washington,
D.C., for Appellant. Chuck Rosenberg, United States Attorney,
Raymond E. Patricco, Jr., Assistant United States Attorney,
David B. Joyce, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Preston T. Jenkins was found guilty after a jury trial of

conspiracy to commit prostitution, two counts of interstate

transportation in furtherance of prostitution, and three counts of

inducing travel for prostitution. He was sentenced to seventy

months’ imprisonment. On his original appeal, Jenkins challenged

the denial of his motion to suppress; contested his sentence under

United States v. Booker, 543 U.S. 220 (2005); and asserted that his

sentencing enhancements were improper. We upheld Jenkins’

convictions, vacated his sentence, and remanded for resentencing

under Booker. We declined to reach the merits of Jenkins’

challenges to his enhancements. On remand, the district court

adopted its prior sentencing reasoning and denied Jenkins’

challenges to his sentencing enhancements. The court then

reimposed a seventy-month sentence and noted that, even in the

absence of the obstruction of justice enhancement,* the court would

still have sentenced Jenkins to seventy months.

On appeal, Jenkins’ attorney has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), raising numerous

issues. In addition, Jenkins has filed a pro se supplemental

brief. After an independent review of the record, we affirm

Jenkins’ sentence.

*
This enhancement was based on an instant message Jenkins sent
to a business associate and Government witness after the conclusion
of the trial.

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 I.

While recognizing that, under the advisory guidelines

system, a district court determines an applicable guideline range

based on a preponderance of the evidence standard, Jenkins

nonetheless asserts that obstruction of justice is an exception and

such an enhancement should only be based on a jury finding or

admission. However, we have determined that Booker did “not in the

end move any decision from judge to jury, or change the burden of

persuasion.” United States v. Morris, 429 F.3d 65, 72 (4th Cir.

2005), cert. denied, 127 S. Ct. 121 (2006). Thus, a defendant’s

sentence is determined the same way after Booker that it was

before; the only change is the degree of flexibility judges enjoy

in applying the system. Id. Accordingly, the district court did

not err in calculating Jenkins’ guideline range based on its

factual conclusion that he had obstructed justice.

II.

Next, Jenkins asserts that the district court erred in

stating that, even in the absence of an obstruction of justice

enhancement, his sentence would have been the same. Jenkins

contends that the district court was required to consider the

enhancement, and thus, were it removed, his sentence should have

been reduced. However, the district court spoke in a hypothetical

manner. The court determined that Jenkins had obstructed justice

and calculated his guideline range based on that finding. Thus,

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anything the court may have done in the absence of such a finding

is irrelevant.

III.

Jenkins asserts that the district court erred in

determining that there were at least five victim prostitutes for

grouping purposes under U.S. Sentencing Guidelines Manual §§ 2G1.1,

3D1.4 (2003). The defendant concedes that there were three victim

prostitutes who were transported across a state boundary. He

further concedes that there were four additional women who

participated in prostitution. However, he asserts that there was

insufficient evidence to show that the additional women crossed

state lines in order to participate in prostitution.

The commentary to USSG § 2G1.1 defines “victim” as a

person who is “transported, persuaded, induced, enticed, or coerced

to engage in, or travel to engage in, a commercial sex act or

prohibited sexual conduct.” USSG § 2G1.1, comment. (n.5). Section

2G1.1(d)(1) instructs that “[i]f the offense involves more than one

victim, Chapter Three, Part D (Multiple Counts) shall be applied as

if the promoting of a commercial sex act or prohibited sexual

conduct in respect to each victim had been contained in a separate

count of conviction.” Section 3D1.4 provides for an increase in

offense levels based on the grouping of offenses. Here, the

district court determined that there were seven separate victims,

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counted each as a separate count of conviction, and assessed the

defendant with an additional five levels under § 3D1.4.

Contrary to Jenkins’ contentions, there is no requirement

that a prostitute be transported or travel across state lines to be

considered a victim under § 2G1.1. Interstate travel is not

mentioned in the relevant guidelines or commentary. Further, a

victim would satisfy the commentary requirements if she were merely

induced or enticed to commit a commercial sex act. Because Jenkins

does not dispute that the four additional women were prostitutes

working for him, the district court properly counted them as

victims.

IV.

Jenkins’ offense level was increased by four levels for

his leading role in the commission of the offense. Under USSG

§ 3B1.1(a), two requirements must be met for a four-level increase

based on a defendant’s leading role in the commission of the

offense to apply. First, the sentencing court must conclude that

the defendant acted as “an organizer or leader of a criminal

activity,” and second, the court must find that the criminal

activity “involved five or more participants or was otherwise

extensive.” Jenkins asserts that the district court erred in

considering the prostitutes as victims for the grouping purposes

described above and also as part of the organization for the

purpose of determining that it was “otherwise extensive.”

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 For purposes of § 3B1.1, a victim can only be considered

a participant if the victim assisted in the promoting of a

commercial sex act with respect to another victim. USSG § 2G1.1,

comment. (n.3). However, in assessing whether an organization is

“otherwise extensive,” all persons involved during the course of

the entire offense are to be considered, even if those persons are

not “participants” under the guidelines. USSG § 3B1.2, comment.

(n.3). Because the number of prostitutes involved could properly

be considered when considering whether the activity was extensive,

the district court did not err.

V.

Next, Jenkins argues that his sentence was unreasonable

because the district court failed to depart from the guideline

range based on the fact that his criminal history category

overstated the seriousness of his criminal record. A sentence

within a properly calculated guideline range is presumptively

reasonable. United States v. Green, 436 F.3d 449, 457 (4th Cir.),

cert. denied, 126 S. Ct. 2309 (2006). A defendant can only rebut

the presumption by demonstrating that the sentence is unreasonable

when measured against the factors in 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2006). United States v. Montes-Pineda, 445 F.3d 375,

379 (4th Cir. 2006), petition for cert. filed (July 21, 2006) (No.

06-5439). However, “a district court need not explicitly discuss

every § 3553(a) factor on the record.” United States v. Eura, 440

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F.3d 625, 632 (4th Cir.), petition for cert. filed (June 20, 2006)

(No. 05-11659).

Here, the district court issued a comprehensive

sentencing order after Jenkins’ first sentencing which was adopted

at the second sentencing. This order discussed the merits of each

of the issues raised at the second sentencing as bases for a

variance from the guideline range. While the order was addressing

these bases in the context of the calculation of the guideline

range, the district court’s rejection of the merits of each basis

would also support the district court’s decision not to impose a

variance sentence. See United States v. Castro-Juarez, 425 F.3d

430, 434-35 (7th Cir. 2005) (recognizing that pre-Booker decisions

analyzing upward or downward departures under USSG § 4A1.3 are

useful in determining whether increasing or decreasing the sentence

for similar reasons was reasonable).

We find that the district court was within its discretion

to conclude that Jenkins’ criminal history, which included a

violent offense and repeated probation violations, weighed against

a sentence below the guideline range. Thus, the court’s decision

to sentence Jenkins to the low end of the guideline range was

reasonable.

VI.

Finally, Jenkins argues that his crime was essentially a

local crime that generally would have been handled in state court.

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He asserts that his prostitutes crossed state lines (thus,

conferring federal jurisdiction) only because Jenkins worked in the

D.C. area, where D.C., Maryland, and Virginia converge. He

contends that, had he been sentenced in state court, he would have

received a significantly lower sentence. Thus, he argues that his

sentence was unreasonable.

First, Jenkins provides no statistics or proof showing

that his sentence would have been shorter in state court. Second,

the district court considered this argument in its written order

and found that the crossing of state lines was intentional and that

discouraging crime in the D.C. area was an important goal.

Finally, we have concluded that, in the vast majority of cases, a

sentence lowered in order to be more comparable to a similar state

sentence will improperly create sentencing disparities among

federal sentences and, thus, be unreasonable. See United States v.

Clark, 434 F.3d 684, 687-88 (4th Cir.), cert. denied, 126 S. Ct.

2054 (2006). In addition, we noted that proof of state/federal

sentencing disparities was required before relying on such a factor

to impose a variance sentence. Id. at 688 n.2. Because Jenkins

did not support his contentions and because the district court

properly considered the substance of Jenkins’ arguments, Jenkins’

sentence was reasonable.

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 VII.

Jenkins has filed a pro se supplemental brief raising the

following claims: (1) the district court failed to order an updated

PSR, (2) his sentence should have been reduced based on lack of

coercion or force, (3) the district court improperly assessed an

obstruction of justice enhancement, and (4) there was Booker error

in calculating his guideline range. Our review of the record shows

that these claims are meritless.

VIII.

As required by Anders, we have reviewed the record in its

entirety and found no reversible error. Accordingly, we affirm

Jenkins’ sentence. This court requires that counsel inform her

client, in writing, of his right to petition the Supreme Court of

the United States for further review. Thus, we deny counsel’s

motion to withdraw. If the client requests that a petition be

filed, but counsel believes that such a petition would be

frivolous, then counsel may renew her motion at that time.

Counsel’s motion must state that a copy thereof was served on the

client. We dispense with oral argument, because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED

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