United States v. Scott

FILED
United States Court of Appeals
Tenth Circuit

June 24, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 07-6111
v.

KELVIN B. SCOTT, JR.,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CR-04-75-F)

David Autry, Oklahoma City, Oklahoma for Defendant–Appellant.

Sanford C. Coats, Assistant United States Attorney (John C. Richter, United
States Attorney, and Rozia M. McKinney-Foster, Assistant United States
Attorney, with him on the brief), Oklahoma City, Oklahoma for the
Plaintiff–Appellee.

Before LUCERO, MURPHY, and HARTZ, Circuit Judges.

LUCERO, Circuit Judge.

Kelvin B. Scott, Jr., appeals a sentence of 120 months’ imprisonment, on

his conviction, based on a plea of guilty, of one count of transporting a minor
across state lines in violation of the Mann Act, 18 U.S.C. § 2423(a). Scott argues

that the district court (1) violated due process and abused its discretion in calling

and questioning a witness at his sentencing hearing; (2) entered a procedurally

unreasonable sentence because it erroneously applied sentencing enhancements

for an “unusually vulnerable victim” and a “leadership role”; (3) impermissibly

varied upward, resulting in a substantively unreasonable sentence; and (4)

violated ex post facto principles inherent in the Due Process Clause because

Scott’s sentence would have been “inconceivable” under the mandatory United

States Sentence Guidelines (“Guidelines”) scheme in effect at the time of the

crime. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a),

we affirm.

I

In January 2003, S.H., a 13-year-old girl, ran away from home. On the

same day that she left home, Scott and “Obsession,” 1 a prostitute in his employ,

approached S.H. on an Oklahoma City street. Scott, who was driving, and

Obsession were in Scott’s vehicle. They asked S.H. if she liked to drink alcohol

and smoke marijuana. When she replied that she did, Scott and Obsession

showed her a bottle of alcohol in the car. S.H. told them both that she was 13

1
Law enforcement officials involved in the case were never able to identify
this individual by her legal name. Although she is referred to as both “Orgasm”
and “Obsession” in the record, we will refer to her as “Obsession” for
consistency.

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years old and a runaway. They enticed her with an offer of “nice clothes and

money in your pocket” and a “better life” and told her that she could live with

them.

Upon Scott and Obsession’s invitation to a party somewhere in town, S.H.

got into the vehicle with them. Instead of remaining in the city, however, Scott

drove S.H. to Amarillo, Texas, about 250 miles away. On realizing that they were

leaving Oklahoma City, S.H. became frightened, but was reassured by the

explanation that they were going to Amarillo to visit Obsession’s mother.

When the three arrived in Amarillo, Scott told S.H. that he expected her to

work as a prostitute. S.H. was instructed to earn $500 to $1,000 per night and

charge $40 to $90 for various sexual acts. Obsession provided S.H. with “ho

clothes” and taught her how to be a prostitute. The two worked together at a

truck stop in Amarillo for a week. S.H. used the street name “Strawberry” and

began earning $200 to $400 per night. Proceeds were collected by Obsession and

handed over to Scott. Before meeting Scott and Obsession, S.H. had not worked

as a prostitute.

After about a week in Texas, the three returned to Oklahoma City. Scott

ordered S.H. to continue working for him at a local truck stop, but she refused

and ran away. S.H. then attempted to work independently but eventually came

under the employ of another pimp. She worked as a prostitute for a total of three

to four weeks.

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 Contemporaneously, the Federal Bureau of Investigation (“FBI”) was

conducting a large-scale investigation of Oklahoma City prostitution. One of the

agents involved, Mike Beaver, learned that a minor nicknamed “Strawberry” was

engaged in prostitution, and eventually met and interviewed her. The

investigation revealed that over a period of roughly one year, Scott employed at

least five prostitutes, including S.H. and Obsession. One of these women, B.U.,

was a juvenile, and two others, Katharine Schroeder and Casey Pipestem, were

adults. 2 At the time of S.H.’s employment, Obsession was Scott’s lead prostitute.

In June 2004, Scott was charged by superceding indictment of four counts:

(1) transporting an adult, Schroeder, in interstate commerce for purposes of

prostitution in violation of 18 U.S.C. § 2421; (2) transporting a juvenile, S.H., in

interstate commerce for purposes of prostitution in violation of § 2423(a); (3)

recruiting S.H. to engage in a commercial sex act in violation of § 1591(a); and

(4) recruiting another juvenile, B.U., to engage in a commercial sex act in

violation of § 1591(a). All counts also included a charge of aiding and abetting in

violation of § 2.

After negotiating an agreement with the government, Scott pleaded guilty

on August 9, 2004, to Count Two, transporting S.H. across state lines for

purposes of prostitution and aiding or abetting this offense. Scott’s plea

2
There is also mention in the record of a prostitute in Scott’s employ who
went by the name of “Sensation.” It is unclear whether this nickname refers to
one of the five women listed above.

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agreement specifically listed the sentence enhancing factors on which the

government expected to rely at sentencing, including the victim’s age and the use

of coercion in the offense. Accordingly, the presentence report (“PSR”) showed

that Scott’s crime carried a base offense level of 19, see U.S.S.G. § 2G1.1(a)(1)

(2003), 3 but added four levels for the use of fraud in a commercial sex act, see

§ 2G1.1(b)(1), and two additional levels because Scott’s victim was between the

ages of 12 and 16, see § 2G1.1(b)(2)(B). Two levels were subtracted for

acceptance of responsibility, see § 3E1.1(a), leaving a final offense level of 23.

This offense level, combined with a criminal history category of I, resulted in an

advisory Guidelines sentencing range of 46 to 57 months’ imprisonment.

Before the sentencing hearing, the district court ordered briefing on the

applicability of two sentencing enhancements not mentioned in the PSR: a two-

level enhancement for S.H.’s unusual vulnerability, under § 3A1.1(b)(1), and a

two-level enhancement for Scott’s role as a leader or manager in the offense,

under § 3B1.1(c). At the hearing, the government called Agent Beaver, who had

3
Section 2G1 of the Guidelines was amended effective November 1, 2004,
after Scott’s offense but before his sentencing. Among other things, the
amendment increased the base offense level for a commercial sex act involving a
minor from 19 to 24. Compare § 2G1.1(a)(1) (2003), with § 2G1.3(a) (2004).
Because this amendment would have increased Scott’s penalty, the district court
properly sentenced him using the Guidelines manual in effect at the time of his
offense. See § 1B1.11; see also United States v. Thompson, 518 F.3d 832, 868,
870 (10th Cir. 2008) (when a district court must apply a section of the Guidelines
as it existed at the time of the offense due to ex post facto concerns, it must apply
the entire Guidelines manual applicable at the time of the offense). Unless
otherwise noted, citations in this opinion are to the 2003 Guidelines.

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interviewed S.H. some 10 to 12 times during and after the FBI investigation, to

testify in support of these enhancements. The court determined that both

enhancements applied to Scott’s conduct, resulting in a total offense level of 27

and an advisory range of 70 to 87 months’ imprisonment. However, the

government’s motion for an upward departure for abduction under § 5K2.4 was

denied on the conclusion that it would double-count the § 2G1.1(b)(1) fraud

enhancement already applied.

The court then imposed an upward variance under 18 U.S.C. § 3553(a), and

selected a sentence of 120 months’ imprisonment. As its explanation for the

variance, the court found that Scott employed several other prostitutes besides

S.H., treated them cruelly, and acted as a pimp for approximately one year.

Scott appealed the sentence based in part upon the provision in his plea

agreement which specified those facts upon which the government would rely as

bases for sentencing enhancements, arguing that this list implied an agreement by

the government not to argue for additional enhancements. In this earlier appeal,

we concluded that the government had breached the agreement by advocating for

additional enhancements at sentencing, and vacated Scott’s sentence. United

States v. Scott, 469 F.3d 1335 (10th Cir. 2006). On remand, the district court

advised it would consider imposing vulnerable victim and leadership role

enhancements as well as an upward variance. The court then held two hearings,

one evidentiary and the second for sentencing.

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 At the evidentiary hearing in March 2007, the court explained that it would

not consider evidence previously presented by the government in violation of the

plea agreement. Noting that “the government’s hands are tied” in terms of

presenting evidence supporting the vulnerable victim and leadership role

enhancements, the court, on its own initiative, called Beaver as a witness. Scott

objected on constitutional due process and abuse-of-discretion grounds, but the

court overruled his objection. In response to the court’s questioning, Beaver

testified at length about the circumstances of Scott’s offense and about S.H.’s

personal characteristics, including drug use, institutionalization for mental health

treatment, and a habit of self-mutilation. Scott’s counsel then cross-examined

Beaver and called three of Scott’s family members as mitigation witnesses.

Throughout the hearing, counsel presented extensive argument challenging the

two enhancements and any upward variance.

At the second hearing, in April 2007, the court entered factual findings and

imposed a sentence. The court stated:

In situations in which the agent’s testimony is received and is not
opposed with substantial countervailing testimony, I do tend to listen
with special skepticism to the testimony of the agent. The purpose of
the sentencing hearing is not to let one side or the other run up the
score from an evidentiary standpoint, but to fairly ascertain the
relevant facts and that is the approach I have taken in considering
and analyzing the testimony of Agent Beaver. I did not hear Agent
Beaver’s testimony with an uncritical ear and I have not evaluated
his testimony with an uncritical mind.

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Concluding that Beaver’s testimony was credible, the court proceeded with its

detailed factual findings. Relevant to the enhancements at issue, the court

concluded that S.H. was a vulnerable victim and that Scott was a leader or

manager, and again imposed the corresponding sentence enhancements. Scott

renewed his procedural objection, arguing that “factually and legally neither of

these additional enhancements apply.”

Scott then addressed the § 3553(a) sentencing factors at length, contending

that the case was not so unusual as to warrant an above-Guidelines sentence. The

court again found that the upward variance previously imposed was appropriate.

Scott’s sentence was set at 120 months. 4

Following sentencing, the court issued a lengthy written sentencing

decision fully exploring the law and facts supporting the two enhancements and

upward variance. Scott now appeals the sentence.

II

Scott challenges the district court’s decision to call Beaver as a witness and

to question him regarding the leadership role and vulnerable victim sentencing

enhancements. Scott argues that the court’s actions were impermissible for two

reasons: (1) The court showed partiality to the government, thus denying Scott

4
The court also stated that it would impose the same ultimate sentence
even absent the two additional Guidelines enhancements. Because we affirm the
district court’s application of these enhancements, we need not consider the
validity of this alternative justification.

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his due process right to an impartial tribunal; and (2) The court abused its

discretion to call outside witnesses by assuming the role of an advocate. We

consider each argument in turn.

A

“The Due Process Clause entitles a person to an impartial and disinterested

tribunal in both civil and criminal cases. This requirement . . . . preserves both

the appearance and reality of fairness, generating the feeling, so important to a

popular government, that justice has been done . . . .” Marshall v. Jerrico, Inc.,

446 U.S. 238, 242 (1980) (quotation omitted). “To demonstrate a violation of due

process because of judicial bias, a claimant must show either actual bias or an

appearance of bias.” United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir.

2005) (citation omitted).

Scott argues that by calling Beaver to testify, the district court abandoned

judicial impartiality, or at least appeared to do so. He emphasizes that the court

stated that it called Beaver because the plea agreement prohibited the government

from doing so itself, and argues that this statement shows bias in favor of the

government. He also objects to the content of the court’s questions, which he

claims demonstrate the court’s partiality because the questions primarily elicited

facts supporting the enhancements.

We conclude that the court did not violate Scott’s due process rights by

calling Beaver to the stand. Although Beaver had appeared as the government’s

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witness at the earlier trial, he was also the individual best able to testify about the

circumstances of Scott’s crime. Admittedly, Beaver’s testimony countered

Scott’s arguments against an increased sentence, but a judge does not show actual

bias simply by calling a witness whose testimony proves more helpful to one

party than the other. 5 As we have stated previously, “it is no ground of complaint

that the facts [developed during judicial questioning of a witness] may hurt or

help one side or the other.” United States v. Albers, 93 F.3d 1469, 1486 (10th

Cir. 1996) (quotation omitted); see also United States v. Campino, 890 F.2d 588,

592 (2d Cir. 1989) (“By seeking additional evidence . . ., the court in no way

displayed a predisposition towards the government’s position.)”

Nor did the court’s questions to Beaver show actual partiality. Although

the court often asked leading questions, this by itself does not demonstrate

impermissible bias. A district court “may ask a leading question,” United States

v. Wheeler, 444 F.2d 385, 390 (10th Cir. 1971), and in general it “has the power

. . . to interrogate witnesses in a manner reasonably thought to bring about a just

result,” United States v. Cheatwood, 575 F.2d 821, 826 (10th Cir. 1978). The

record suggests that the court’s questions may have betrayed some impatience

5
We reject Scott’s allegation that the district court shifted the burden of
proof from the government to Scott merely by calling a witness whose testimony
tended to support sentencing enhancements. Cf. United States v. Guzman, 318
F.3d 1191, 1197-98 (10th Cir. 2003) (holding that a district court shifted the
burden of proof away from the government by accepting disputed and
unsupported factual statements in a PSR).

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with eliciting testimony already heard in the prior hearing, but they do not

indicate that the court prejudged whether the two enhancements should apply. 6

Finally, the court was careful to mitigate any perception of bias that could

have arisen from calling and questioning Beaver. The sentencing court stated that

it had listened to Beaver’s testimony with “special skepticism” because of the

lack of countervailing evidence and that Beaver was “assuredly not the Court’s

own witness.” Because Scott has not demonstrated bias or an appearance of bias

by the sentencing court, his due process challenge fails.

B

We turn to Scott’s assertion that, even if it did not violate due process, the

district court abused its discretion in calling and questioning Beaver. Federal

Rule of Evidence 614(a) provides that a district court “may, on its own motion or

at the suggestion of a party, call witnesses . . . .” Calling Beaver to testify at the

sentencing hearing, the district court cited this rule, and both Scott and the

government base their arguments on cases decided under the rule. By their own

6
As Scott noted at oral argument, we generally remand for resentencing in
front of a different judge when a plea agreement is breached, United States v.
VanDam, 493 F.3d 1194, 1206 (10th Cir. 2007), but did not do so in his previous
appeal, Scott, 469 F.3d. at 1340. As VanDam explains, “[a]rguably, a defendant
may be more likely to receive the same sentence if the judge is the same.” 493
F.3d at 1205 n.7. Scott has raised no argument, however, that the prior panel’s
failure to remand to a different judge led to “per se” bias against him at
resentencing. Nor did he request resentencing before a different judge from the
panel that heard his prior appeal.

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terms, however, the Federal Rules of Evidence do not apply to sentencing

hearings. Fed. R. Evid. 1101(d)(3). Nor does Federal Rule of Criminal

Procedure 32, which governs sentencing, specifically provide a basis for the

court’s action; this rule states only that “[t]he court may permit the parties to

introduce evidence,” including witness testimony. Fed. R. Crim. P. 32(i)(2)

(emphasis added). Accordingly, we must look elsewhere to determine whether a

sentencing court has the power to call and question a witness.

We need not look far. The Supreme Court has recognized a “longstanding

principle that sentencing courts have broad discretion to consider various kinds of

information” relevant to the sentencing decision. United States v. Watts, 519

U.S. 148, 151 (1997). This principle is codified at 18 U.S.C. § 3661, which

provides that “[n]o limitation shall be placed on the information . . . which a court

of the United States may receive and consider for the purpose of imposing an

appropriate sentence.” In United States v. Garcia, we held that a district court

“acted well within [its] discretion” in calling two witnesses to confirm

information raised in the PSR, rather than relying exclusively on facts stipulated

by the parties. 78 F.3d 1457, 1462-63 (10th Cir. 2006). Moreover, in addressing

this issue, we treated the calling of witnesses as part of the district court’s

obligation to gather information relevant to the sentencing determination. Id. at

1463 n.6 (holding that a sentencing court “must establish the relevant facts” even

where there is no factual dispute between the government and the defendant); see

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also United States v. Doe, 398 F.3d 1254, 1260 (10th Cir. 2005) (quoting United

States v. Lara-Velasquez, 919 F.2d 946, 955 (5th Cir. 1990), for the proposition

that “[t]he sentencing judge has an obligation to consider all the relevant factors

in a case and to impose a sentence outside the guidelines in an appropriate case”).

Scott argues that a sentencing court may only gather additional evidence

related to issues of fact raised in the PSR. Yet we can find no authority for such

a limitation on a sentencing court’s discretion. See 18 U.S.C. § 3661; Fed. R.

Crim. P. 32(i)(3)(B) (requiring a district court to rule on “any disputed portion of

the presentence report or other controverted matter” (emphasis added)). Cases

cited by Scott indicate that a district court may gather evidence related to issues

raised in the PSR, but these cases do not limit the evidence courts may consider to

that category alone. E.g., Garcia, 78 F.3d at 1462-63 (affirming a district court’s

decision to “call[] and examine[] witnesses to verify the accuracy of the

[presentence] report”). 7 Even if Scott were correct, his PSR contained facts

relating to both S.H.’s vulnerability and Scott’s leadership role. The court clearly

7
Scott also relies heavily on United States v. Gatewood, 370 F.3d 1055
(10th Cir. 2004). This opinion, however, was vacated by Gatewood v. United
States, 543 U.S. 1109, 1116 (2005). Even if we were to consider our reasoning in
Gatewood for its persuasive value, that opinion, like Garcia, merely stated that
issues raised in the PSR can provide a basis for the district court to gather its own
evidence. 370 F.3d at 1063.

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had the authority to explore these aspects of the crime further, regardless of the

probation officer’s conclusion that they did not warrant additional enhancements. 8

Having established that a district court has the power to call a witness at

sentencing, we next consider whether the district court abused its discretion in

doing so here. Although our precedents regarding a district court’s discretion

under Federal Rule of Evidence 614 are not directly applicable, the underlying

principles are the same. See United States v. Whitehorse, 2000 WL 219967, at

*1-2 (10th Cir. Feb. 25, 2000) (unpublished) (considering Rule 614 principles in

reviewing a court’s decision to question a witness in a sentencing hearing). 9

In the Rule 614 context, we have cautioned that “[i]nterrogation of

witnesses by a judge in a criminal case creates a unique risk that the judge will be

perceived as an advocate,” United States v. Orr, 68 F.3d 1247, 1250 (10th Cir.

1995), and that “in exercising this power [to question witnesses] a judge must

take care not to create the appearance that he or she is less than totally impartial,”

8
Quoting the Supreme Court’s opinion in Quercia v. United States, 289
U.S. 466, 470 (1933), Scott maintains that Beaver’s questioning was improper
because a judge “may analyze and dissect the evidence, but he may not either
distort it or add to it.” Scott misunderstands the meaning of the Court’s
statement. As discussed, a district court judge clearly has the power to call
witnesses who will “add to” the available evidence. Quercia stands for the
unrelated proposition that a judge may not “add to” the evidence by becoming the
source of information not in the record. See id. (holding that the judge “may not
assume the role of a witness”).
9
Unpublished opinions are not binding precedent, but may be relied upon
for their persuasive value. 10th Cir. R. 32.1. We cite Whitehorse for its
persuasive value only.

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Albers, 93 F.3d at 1485-86. 10 For the reasons discussed above, we conclude that

the district court took sufficient precautions guarding against the risk of appearing

biased. Moreover, “[t]he record reflects that had the court not pursued its

interrogation, the search for truth may not have been served.” United States v.

Latimer, 548 F.2d 311, 314 (10th Cir. 1977). The court did not exceed the

bounds of its discretion in calling and questioning Beaver.

III

Turning to Scott’s challenges to the sentence he received, we review a

district court’s sentencing determination for reasonableness, asking whether the

court abused its discretion in selecting the sentence imposed. United States v.

Smart, 518 F.3d 800, 805 (10th Cir. 2008). “Our appellate review for

reasonableness includes both a procedural component, encompassing the method

by which a sentence was calculated, as well as a substantive component, which

relates to the length of the resulting sentence.” Id. at 803.

Initially, we consider the procedural reasonableness of Scott’s sentence.

Gall v. United States, 128 S. Ct. 586, 597 (2007). A district court must begin

every sentencing proceeding by “correctly calculating the applicable Guidelines

10
We note that both Orr and Albers involved questioning of a trial witness
before a jury, and that a display of judicial partiality at sentencing raises
somewhat different abuse-of-discretion concerns from those present at trial. At
trial, the risk is that the court’s authority will improperly influence the jury. See,
e.g., Orr, 68 F.3d at 1251 n.5 (noting that questions outside the presence of the
jury “could not have influenced the jury [so] we do not address them”). Trial and
sentencing share the risk of a perception of bias by the parties, however.

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range.” Id. at 596. Any error in the Guidelines calculation renders a sentence

procedurally unreasonable and, if the error is not harmless, requires remand.

United States v. Todd, 515 F.3d 1128, 1134-35 (10th Cir. 2008). Once we have

determined that a sentence is procedurally reasonable, we review for substantive

reasonableness, applying an abuse-of-discretion standard. Smart, 518 F.3d at 805.

“Substantive reasonableness involves whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth

in 18 U.S.C. § 3553(a).” United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.

2007).

A

1

We begin with Scott’s challenges to the procedural reasonableness of his

sentence. 11 Section 3A1.1(b)(1) of the Guidelines provides that “[i]f the

defendant knew or should have known that a victim of the offense was a

vulnerable victim,” his offense level must be increased by two levels. Scott

contests the district court’s conclusion that this enhancement applied to his

conduct. In evaluating the application of a Guidelines enhancement, we review

“factual findings for clear error,” but “to the extent the defendant[] ask[s] us to

interpret the Guidelines or hold [that] the facts found by the district court are

11
The government argued in its briefs that Scott’s plea agreement waived
his right to appeal this aspect of his sentence, but has since moved to withdraw
that argument. We grant the motion.

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insufficient as a matter of law to warrant an enhancement, we must conduct a de

novo review.” United States v. Checora, 175 F.3d 782, 788-89 (10th Cir. 1999).

Application Note 2 to the vulnerable victim guideline requires that the

victim must be “unusually vulnerable due to age, physical or mental condition, or

. . . otherwise particularly susceptible to the criminal conduct.” 12 § 3A1.1 cmt.

n.2 (emphases added); see also United States v. Proffit, 304 F.3d 1001, 1007

(10th Cir. 2002). “The theory behind the vulnerable victim enhancement is that

conduct against the particular victim or group of victims is more blameworthy

than the conduct of other offenders and thus deserves greater punishment.”

United States v. Castaneda, 239 F.3d 978, 980 (9th Cir. 2001). Specifically, the

enhancement should apply when the victim is “less able to resist than the typical

victim,” id., and “require[s] greater societal protection,” Proffit, 304 F.3d at 1007.

Accordingly, we have held that “the evidence must . . . distinguish the victim as

atypical of the usual targets of the relevant criminal conduct.” United States v.

Caballero, 277 F.3d 1235, 1251 (10th Cir. 2002) (emphasis added); see also

United States v. Shumway, 112 F.3d 1413, 1423 (10th Cir. 1997); United States v.

Creech, 913 F.2d 780, 781-82 (10th Cir. 1990). In assessing vulnerability, the

sentencing court must make an individualized determination; it is not enough that

a victim belongs to a class generally considered vulnerable. Proffit, 304 F.3d at

12
An application note to the Guidelines “is authoritative unless it violates
the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous
reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).

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1007; see also United States v. Hardesty, 105 F.3d 558, 560 (10th Cir. 1997)

(although advanced age is insufficient to support the enhancement “without

more,” the victims’ “medical and physical needs as they advanced in years, and

their obvious inexperience in finances” made them unusually vulnerable to

embezzlement (quotation omitted)).

The application notes caution that the vulnerable victim enhancement

cannot be applied “if the factor that makes a person a vulnerable victim is

incorporated in the offense guideline”—that is, a particular characteristic cannot

be “double-counted” for purposes of the Guidelines calculation. § 3A1.1 cmt.

n.2; see also Checora, 175 F.3d at 794 (“Impermissible double counting or

cumulative sentencing occurs when the same conduct on the part of the defendant

is used to support separate increases under separate enhancement provisions

which necessarily overlap, are indistinct, and serve identical purposes.”

(quotation omitted)). Therefore, S.H.’s young age cannot be taken into account in

determining her vulnerability, because her age provided the basis for a separate

two-level sentencing enhancement under § 2G1.1(b)(2). In other words, because

§ 2G1.1(b)(2) enhancement applies to all victims between the ages of 12 and 16,

to avoid double counting, S.H.’s vulnerability must be unusual even for

trafficking victims within this age range. The district court recognized this at

sentencing, emphasizing that it imposed the enhancement based on factors other

than age.

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 The district court provided two reasons for determining that S.H. was an

unusually vulnerable victim. First, the court found that S.H. was unusually

vulnerable to trafficking because of the following personal traits: (1) she was

“exceedingly petite” and “fragile” for her age; (2) she was “naive,” “[h]er

communication skills were poor,” and she was generally immature; (3) she was an

intravenous methamphetamine user; (4) she had mental problems as evidenced by

her self-mutilating behavior and later institutionalization; and (5) she had run

away from home. Second, the court found that S.H. became even more vulnerable

when Scott took her 250 miles to Amarillo, leaving her in “strange and unfamiliar

surroundings.” This circumstance, the court concluded, increased her dependence

on Scott and her vulnerability to exploitation.

Scott does not disagree that S.H. possessed the aforementioned personal

traits. Rather, he claims that he did not know nor should he have known about

the victim’s characteristics relied upon by the court, as required by § 3A1.1. In

addition, even if he knew or should have known about these characteristics, Scott

tells us, they are not sufficiently unusual, as a matter of law, to support the

enhancement.

We ask first whether the court clearly erred in its factual findings regarding

what Scott should have known. In reviewing Scott’s knowledge, we recognize

that “it is not a prerequisite that a defendant be aware of the victim’s vulnerability

at the time the defendant targets the victim; learning about the vulnerability

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during the criminal episode is sufficient.” Proffit, 304 F.3d at 1006. Based on

the evidence before the district court, we conclude that only some of S.H.’s

vulnerabilities would have been apparent to Scott during the criminal episode.

We hold, however, that these remaining facts are sufficient to support the

enhancement.

The district court found generally that S.H.’s “fragile condition” was

“obvious to Kelvin Scott,” and thus he should have known she was a vulnerable

victim. S.H.’s physical stature assuredly would have been immediately evident to

him. Although her naivete and poor communication skills may have been less

obvious to Scott at first, the ensuing conversation would have revealed these

vulnerabilities. If nothing else, S.H.’s agreement to get into a vehicle driven by

two older, unknown individuals represented an abnormally trusting decision for a

13-year-old. Scott also knew that S.H. had run away from home, as this topic

arose in their initial conversation.

Not all of the vulnerabilities found by the district court would have been

quite so obvious to Scott, however. Regarding S.H.’s methamphetamine use, the

district court found that Scott was aware that S.H. used “illegal drugs,” but the

evidence shows only that he knew she used marijuana and alcohol. As Beaver

admitted during cross-examination, there is no indication in the record that Scott

knew or should have known that S.H. used methamphetamine. Similarly, there is

no suggestion that Scott knew of S.H.’s mental problems. In concluding that S.H.

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suffered from mental illness, the court relied upon Beaver’s testimony that S.H.

practiced self-mutilation and was eventually institutionalized. But Scott could

not have known of this eventuality at the time of their initial encounter. Nor does

evidence in the record suggest that Scott had any other reason to doubt her mental

state, including any notice of her habit of self-mutilation. See United States v.

Myers, 481 F.3d 1107, 1110-11 (8th Cir. 2007). Beaver himself knew of this

habit only because S.H. told him about it in interviews, and not because he

witnessed any visible signs himself.

It may well be that during the course of Scott’s subsequent employment of

S.H., he became aware of her drug usage or her mental illness. But the law

requires that he hold this knowledge at the time that he placed S.H. in his car and

transported her across state lines, the offense for which he was convicted. See

Proffit, 304 F.3d at 1006. Given that the record before us does not establish that

her methamphetamine usage and mental illness were vulnerabilities of which

Scott knew or reasonably should have known during the relevant time period, the

district court’s findings to the contrary were clearly erroneous. Accordingly, we

may rely only upon S.H.’s physical vulnerability, immaturity, and runaway status

in reviewing the applicability of the vulnerable victim enhancement.

Starting with S.H.’s status as a runaway, we recognize that the district court

did not simply rely on runaway status as a “per se” indicator of vulnerability. See

Proffit, 304 F.3d at 1007. Instead, the court found that it increased S.H.’s

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vulnerability to Scott’s crime because it made his offer of “a better life” all the

more appealing. This individualized finding of vulnerability, however, can

support the enhancement only if it is unusual. The Ninth Circuit has reasoned

that an unstable living environment alone cannot support the vulnerability

enhancement for victims of Mann Act violations, among whom such instability is

unfortunately common. See United States v. Williams, 291 F.3d 1180, 1195-96

(9th Cir. 2002) (overturning vulnerable victim enhancement based only on

victim’s runaway and drug user status), overruled on other grounds by United

States v. Gonzales, 506 F.3d 940 (9th Cir. 2007). We agree that an unstable

personal life is sufficiently common among Mann Act victims that S.H.’s runaway

status cannot support the enhancement.

We conclude, however, that S.H.’s other personal characteristics were

adequate for the district court to find that she was unusually vulnerable even

among Mann Act victims. See, e.g., Williams, 291 F.3d at 1196 (upholding the

enhancement for a victim whom the district court determined was unusually

psychologically vulnerable based on specific findings of fact). S.H. was both

particularly small and frail, and unusually naive and immature, for her age. 13

These features made her more vulnerable to Scott’s crimes in several ways. Her

13
Although the district court did not explicitly conclude as much, its
findings logically imply that S.H. was unusual compared to other trafficking
victims; there is no reason to believe that minor Mann Act victims are generally
smaller in stature than other children, or generally more or less naive.

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small size would have made her more fearful of fleeing from Scott’s vehicle or

protesting her abduction once she had entered the car, and more likely to accept

Scott’s offer to leave the streets and live with him. Her naivete would lead her to

inaccurately assess the risks of joining Scott and Obsession in the vehicle. We

conclude that S.H.’s small physical size and her naivete rendered her unusually

vulnerable to trafficking, compared to the average 12-to-16-year-old victim of

such a crime. 14

2

Section 3B1.1(c) of the Guidelines provides for a two-level enhancement

“if the defendant was an organizer, leader, manager, or supervisor in any criminal

activity” involving fewer than five participants. U.S.S.G. § 3B1.1 cmt. n.1. A

“participant,” in turn, must be “criminally responsible for the commission of the

offense” even if he or she was not charged or convicted. Id. cmt. n.1. The

district court concluded that Obsession, the prostitute who accompanied Scott,

was a participant in his offense, and that Scott supervised her. Scott contends that

Obsession was not a criminal participant, but simply another victim of his

commercial sex trafficking activities.

14
Because these factors are sufficient to support the enhancement, we need
not address the district court’s additional justification that S.H. was vulnerable
because she was transported to Amarillo, as any error in its reasoning therein
would be harmless. Todd, 515 F.3d at 1135 (applying harmless error review to
errors in Guidelines calculation).

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 The Eighth Circuit has examined the application of § 3B1.1 in a similar

Mann Act prostitution case. United States v. Jarrett, 956 F.2d 864, 867-68 (8th

Cir. 1992). The Jarrett court reversed the district court’s application of the

enhancement, reasoning that although several prostitutes worked for the

defendant, they “cannot be counted as participants unless they assisted in the

unlawful transportation of others.” Id. at 868 (quotation omitted). Relying on

Jarrett, Scott claims that Obssession was not a participant because she “was

simply along for the ride, and was as much a victim as S.H.”

In contrast to the facts of Jarrett, the district court in this case recognized

that Obsession had done far more than undertake her own prostitution activities

under Scott’s supervision. The court found that she participated in persuading

S.H. to get into Scott’s vehicle and reassured S.H. that they were merely visiting

her mother when S.H. realized how far they were traveling. These findings were

based on Beaver’s testimony and were not clearly erroneous.

We further conclude that these findings are sufficient to support application

of the enhancement as a matter of law. Because Obsession assisted in convincing

S.H. to get into the vehicle, she was “criminally responsible” for the same offense

as Scott. See § 3B1.1 cmt. n.1. Under the facts found by the district court, she

could be convicted under 18 U.S.C. §§ 2423(a) & 2. To violate § 2423(a), a

defendant must (1) transport the victim across state lines and (2) do so knowingly

and with a purpose of illegal sexual activity, and (3) the victim must be a minor.

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Id.; see also United States v. Meacham, 115 F.3d 1488, 1495 (10th Cir. 1997).

Section 2 allows a defendant to be convicted for aiding and abetting a violation

when the defendant “willfully associated himself with the criminal venture and

sought to make the venture succeed through some action of his own.” United

States v. Isaac-Sigala, 448 F.3d 1206, 1213 (10th Cir. 2006). Obsession aided

Scott in transporting S.H. to Texas by encouraging S.H. to join them in the

vehicle and by reassuring her of the purportedly benign purposes of the trip. In

doing so, she willfully associated herself with his venture and acted in support of

it. She therefore qualifies as a “criminal participant” in the offense, because she

could be convicted of the same offense as Scott himself.

The enhancement also requires that Scott in fact supervised Obsession.

Scott does not appear to contest the district court’s finding that he acted in such a

capacity, nor could he do so successfully. In order to qualify as a supervisor,

one needs merely to give some form of direction or supervision to
someone subordinate in the criminal activity. Among the factors
which a court may consider are the defendant’s exercise of decision
making authority, the nature of participation in the commission of the
offense, the recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of participation in
planning or organizing the offense, the nature and scope of the illegal
activity and the degree of control and authority exercised over others.

United States v. Mandilakis, 23 F.3d 278, 280 (10th Cir. 1994) (quotations

omitted). Scott exercised decisionmaking authority regarding the overall

prostitution enterprise, setting earning requirements and choosing where the

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women he employed would work. He also directed Obsession’s participation in

that enterprise, and claimed all fruits of the prostitution activities as his own.

Accordingly, Scott acted as a supervisor of at least one other criminal

participant in his offense, and the district court did not err in applying a

leadership enhancement under U.S.S.G. § 3B1.1(c). Scott’s sentence was

therefore procedurally reasonable.

B

This brings us to the substantive reasonableness of Scott’s sentence

considering the district court’s decision to impose an upward variance. The

district court relied on several factors to justify the variance, laying out its

findings orally and in a lengthy written statement of reasons. Among these

factors were: (1) Scott’s related unconvicted conduct, which included trafficking

several women other than S.H., including another juvenile; (2) the duration of

Scott’s prostitution activities, which continued for approximately one year; and

(3) the “callousness and sheer cruelty” with which Scott treated S.H. and others in

his employ.

Each of these factors is relevant to a district court’s sentencing

determination under § 3553(a). Most importantly, each indicates that the advisory

Guidelines sentencing range did not fully account for the seriousness of Scott’s

offense. See § 3553(a)(2)(A). The court explained that the length of Scott’s

career as a pimp also showed that his abduction of S.H. was not aberrant

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behavior. From this, the court found an increased need to deter Scott from

undertaking similar behavior in the future and to protect the public by preventing

future offenses. See § 3553(a)(2)(B) & (C). Scott stresses Beaver’s testimony

that none of the aforementioned factors are atypical for an individual engaged in

the employment of prostitutes. But a district court is not required to find that a

defendant is extraordinary in order to conclude that an individualized application

of the § 3553(a) factors militates in favor of a different sentence than the

Guidelines recommend. Smart, 518 F.3d at 808.

On the other side of the § 3553(a) balance, the court specifically indicated

that it had paid careful attention to § 3553(a)(4) and (5), which require

consideration of the advisory Guidelines range. The court concluded that it

would have imposed an even higher sentence absent the benchmark provided by

the Guidelines, thereby satisfying its obligation to give weight to the Guidelines

as “a measure of national practice.” Smart, 518 F.3d at 808. With this reasoning,

the court also accounted for the need to avoid unwarranted sentencing disparities

under § 3553(a)(6): By imposing a lower sentence than it would have imposed in

a system without Guidelines, the court decreased the divergence between Scott’s

sentence and those imposed on other defendants.

In determining that the statutory factors warranted a longer sentence than

the 87-month Guidelines maximum, the sentencing court did not abuse its

discretion. The court relied upon a host of facts indicating that Scott’s crime was

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more serious than his Guidelines range suggested, and heeded § 3553(a)’s

command to consider both the Guidelines and the importance of avoiding

sentencing disparity. “Giv[ing] due deference to the district court’s decision that

the § 3553(a) factors, on a whole, justify the extent of the variance,” Gall, 128 S.

Ct. at 597, we uphold the court’s determination that a 120-month sentence of

imprisonment struck the proper balance.

IV

Finally, Scott argues that the district court’s upward variance violated ex

post facto principles. Because his crime was committed before United States v.

Booker, 543 U.S. 220 (2005), gave district courts the discretion to vary from the

Guidelines, he argues, a sentence so far above the Guidelines range was

unforeseeable to him at the time he committed his crime. We review this legal

issue de novo. Lustgarden v. Gunter, 966 F.2d 552, 553 (10th Cir. 1992).

Although the Ex Post Facto Clause of the United States Constitution

applies only to legislative enactments, the Due Process Clause of the Fifth

Amendment limits ex post facto judicial decisionmaking. See Rogers v.

Tennessee, 532 U.S. 451, 456, 460 (2001). “Limits on ex post facto judicial

decisions are based upon the core due process concepts of notice, forseeability,

and, in particular the right to fair warning.” United States v. Portillo-Quezada,

469 F.3d 1345, 1355 (10th Cir. 2006) (per curiam) (quotation omitted). Where a

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defendant’s “exposure to punishment” has not changed between his crime and his

sentencing, due process is satisfied. Id. at 1355-56.

We have held that retroactive application of the Booker remedy generally

does not violate these principles. United States v. Rines, 419 F.3d 1104, 1106-07

(10th Cir. 2005); see also Portillo-Quezada, 469 F.3d at 1354-56. Relying on a

First Circuit case, however, Scott argues that his post-Booker sentence violated

due process because it was “higher than any that might realistically have been

imagined at the time of the crime.” United States v. Lata, 415 F.3d 107, 112 (1st

Cir. 2005) (discussing but not resolving this argument); see also United States v.

Barton, 455 F.3d 649, 657 (6th Cir. 2006) (leaving open the same argument).

To understand the precise nature of Scott’s argument, it is helpful to review

the facts and reasoning of Lata. In that case, the defendant committed his crime

and was sentenced shortly before the Booker decision. Lata, 415 F.3d at 109.

His crime carried a statutory maximum penalty of 240 months’ imprisonment, but

his sentencing range under the mandatory Guidelines was only 70 to 87 months.

Id. At sentencing, the court concluded (anticipating Booker) that the mandatory

Guidelines scheme was unconstitutional and sentenced the defendant above the

Guidelines range, to 96 months’ imprisonment. Id. The First Circuit held that

this sentence did not run afoul of ex post facto principles because it was “not

wildly different than a sentence that might well have been imposed under the

[mandatory] guidelines for someone with Lata’s criminal record and offense-

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related conduct.” Id. at 112. Because “any prospective Guidelines range

estimated before the crime has been committed is . . . contingent and uncertain,” a

defendant has notice of a broader range of sentences than only those within the

Guidelines range as it is eventually calculated. Id.

However, the court left open an important question, declining to decide

whether the 20-year statutory maximum provided sufficient notice of any possible

punishment up to that maximum, even if such a sentence could not conceivably

have been imposed under the mandatory Guidelines. Noting that it would be

nearly impossible (absent “extremely aggravated characteristics” such as a felony

murder) under the Guidelines for any defendant to actually receive a 20-year

sentence for Lata’s crime, the court “reserv[ed] for the future the case . . . in

which a sentence is imposed for a pre-Booker crime that is higher than any that

might realistically have been imagined at the time of the crime.” Id.

Scott seeks to raise the hypothetical challenge left open in the First Circuit.

Although his 120-month sentence is below the 180-month statutory maximum

penalty in effect at the time he committed his crime, see 18 U.S.C. § 2423(a)

(2002), Scott argues that the sentence is so far above the maximum Guidelines

sentence of 87 months that the statutory maximum alone did not provide him with

sufficient due process notice. We need not decide today whether such a challenge

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might be viable under our own circuit’s precedents, 15 because Scott had fair

warning of his eventual sentence based on the terms of the Guidelines in effect at

the time of his crime. 16 Portillo-Quezada, 469 F.3d at 1355. It is the Guidelines

15
Our precedent is less than clear about the availability of an ex post facto
challenge to a defendant whose sentence was within the statutory maximum. In
Portillo-Quezada, we rejected an ex post facto sentencing challenge on the basis
that “[t]he Supreme Court’s decisions in Blakely and Booker did nothing to alter
the statutory maximum sentence, and therefore did not alter Portillo-Quezada’s
exposure to punishment. Thus, the sentence imposed in accordance with Booker
does not offend ex post facto principles.” 469 F.3d at 1355. In United States v.
Cachucha, however, we noted that although any ex post facto argument based on
Booker “might appear to be foreclosed by” our precedents, none of these prior
decisions involved a sentence higher than the Guidelines range, yet still within
the statutory maximum. 484 F.3d 1266, 1269-70 (10th Cir. 2007) (citing Lata);
see Portillo-Quezada, 469 F.3d at 1354 (defendant challenged only the imposition
of a sentencing enhancement based on findings made by a preponderance of the
evidence, but did not challenge any upward variance); United States v. Herula,
464 F.3d 1132, 1135 (10th Cir. 2006) (finding no ex post facto violation when a
defendant’s Guidelines range was 188-235 months and his sentence was 188
months); Rines, 419 F.3d at 1106 (finding no ex post facto violation when a
defendant’s Guidelines range was 70-87 months and his sentence was 70 months).
Thus, we have never squarely decided whether the statutory maximum alone
provides adequate notice of any sentence up to that maximum, no matter how
improbable the particular sentence might have been under the mandatory
Guidelines. But see United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir.
2005) (holding that the statutory maximum sentence provided a defendant with
“fair warning” that she could receive a sentence up to the specified maximum
term).
16
We reject the government’s argument that the Supreme Court’s decision
to apply the Booker remedy to all cases on review forecloses the possibility that
ex post facto principles might be violated in any such case. See Barton, 455 F.3d
at 657; cf. Rines, 419 F.3d at 1106-07 (10th Cir. 2005) (declining “Defendant’s
invitation to hold that the Supreme Court ordered us to violate the Constitution”
where defendant argued that any application of the Booker remedy to crimes
committed pre-Booker would be unconstitutional).

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themselves that provided Scott with the requisite warning. This negates the

question of whether the statutory maximum alone would have done so.

Scott could not have predicted at the time of his crime that he would

receive a two-level downward adjustment for acceptance of responsibility (as he

in fact did), because this adjustment is dependent on a defendant’s behavior and

decisions, and a court’s evaluation thereof, after the crime takes place. See

§ 3E1.1(a) (“If the defendant clearly demonstrates acceptance of responsibility for

his offense, decrease the offense level by 2 levels.”); see also § 3E1.1 cmt. nn.1-

3. Thus it was foreseeable that his crime of conviction could have resulted in an

offense level of 29, rather than 27.

As the First Circuit noted in Lata, “[e]ven under mandatory guidelines, a

defendant with a criminal record not fully reflected by criminal history points was

always on notice that the top of his guideline range might be exceeded.” 415 F.3d

at 112. Section 4A1.3(a)(1) allows a district court to impose an upward

departure, increasing a defendant’s criminal history category if the history

calculated under § 4A1.2 “substantially under-represent[ed] the seriousness of the

defendant’s criminal history.” Specifically, “[p]rior similar adult criminal

conduct not resulting in a criminal conviction” could lead to an upward departure.

§ 4A1.3(a)(2)(E). Like any fact supporting a sentencing determination, this

conduct could be established by a preponderance of the evidence. See United

States v. Magallanez, 408 F.3d 672, 683-85 (10th Cir. 2005). To determine how

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much a defendant’s criminal history category should be increased, a sentencing

court was required to “us[e], as a reference, the criminal history category

applicable to defendants whose criminal history . . . most closely resembles . . .

the defendant’s.” § 4A1.3(a)(4)(A).

Had the district court chosen to apply § 4A1.3 in Scott’s case, he would

have been eligible for an upward departure. The district court found by a

preponderance of the evidence that, prior to committing the crime of conviction,

Scott employed several women as prostitutes, including one other juvenile. Based

on these findings, the district court could have imposed an upward departure of at

least three criminal history points based on Scott’s unconvicted trafficking and

recruiting activities. See, e.g., § 2G1.1 (providing a base offense level of 19 for

trafficking convictions); Chap. 5 Pt. A (providing a minimum sentence of 30

months for level 19 offenses); § 4A1.1(a) (providing that 3 criminal history points

should be added for each prior sentence of imprisonment exceeding 13 months).

Combining these two foreseeable possibilities, Scott’s conduct and history

could have led to a sentence under the mandatory Guidelines similar to the 120-

month sentence he actually received. At offense level 29, the addition of even a

single criminal history point would have subjected Scott to a Guidelines range of

97 to 121 months’ imprisonment, and the addition of three points, a range of 108

to 135 months. Chap. 5 Pt. A. As this illustration shows, Scott’s ultimate 120-

month sentence in this case is not “higher than any that might realistically have

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been imagined at the time of the crime,” Lata, 415 F.3d at 112, and did not alter

his “exposure to punishment,” Portillo-Quezada, 469 F.3d at 1355. Thus,

imposition of a 120-month sentence did not violate Scott’s due process rights.

V

For the foregoing reasons, Scott’s sentence is AFFIRMED.

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