UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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