United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 2007 Decided March 20, 2007
No. 06-3047
UNITED STATES OF AMERICA,
APPELLEE
v.
CARLOS CURTIS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00533-01)
Thomas J. Saunders, appointed by the court, argued the
cause and filed the brief for appellant.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese III, Cynthia G. Wright, and
Patricia Stewart, Assistant U.S. Attorneys.
Before: SENTELLE, RANDOLPH and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
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RANDOLPH, Circuit Judge: Defendant Carlos Curtis was a
pimp whose prostitutes included girls under the age of eighteen.
A jury convicted him on six counts of an indictment, including
two counts of sex trafficking of children in violation of 18
U.S.C. § 1591 and two counts of transportation of minors for
prostitution in violation of 18 U.S.C. § 2423(a). In a proceeding
after United States v. Booker, 543 U.S. 220 (2005), and
consistent with it, the district court found Curtis to be a career
offender and sentenced him to concurrent terms of life
imprisonment. Curtis’s appeal raises several issues, only two of
which warrant discussion: whether the district court should have
excluded evidence of his prior bad acts and whether he was
properly sentenced as a career offender. We have considered
and rejected his other arguments.
The bad acts evidence consisted of Curtis’s conviction in
New Jersey in 1998 for promoting prostitution of a minor. Over
Curtis’s objection, two New Jersey police officers testified about
his admission that he was the pimp of two minor girls he had
met on a “track” (a street where prostitutes gather). The
government also introduced a copy of the transcript of the
hearing in which Curtis entered a plea of guilty. Curtis has no
argument about the transcript. His claim is that the district court
should have excluded the officers’ testimony under Rule 403 of
the Federal Rules of Evidence, pursuant to which the court may
refuse to admit relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice . . ..”
The risk, present in all cases in which prior bad acts are
admitted under Rule 404(b) of the Federal Rules of Evidence, is
that the jury might conclude “that because the defendant
committed some other crime, he must have committed the one
charged in the indictment.” United States v. Crowder, 141 F.3d
1202, 1210 (D.C. Cir. 1998) (en banc). Given the now-
uncontested introduction of the transcript of Curtis’s plea, we
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cannot see how the officers’ testimony could have heightened
the risk to a point that would have triggered Rule 403. The
transcript had Curtis admitting that he was a pimp and that some
of his prostitutes were minors. The live testimony added some
details about how Curtis operated as a pimp. The government
is, in general, permitted to determine how to present its case.
See Old Chief v. United States, 519 U.S. 172, 186-89 (1997).
There may have been some overlap between the plea transcript
and the officers’ testimony, but the government is not limited to
one piece of evidence for each material fact. The district court
therefore did not abuse its discretion in allowing the officers’
testimony, particularly in light of its uncontested limiting
instruction. See United States v. Bowie, 232 F.3d 923, 926-27,
933 (D.C. Cir. 2000).
Under the “career offender” provisions of the United States
Sentencing Guidelines, a defendant with at least two prior felony
convictions of qualifying offenses receives a greatly enhanced
guideline sentence when convicted of another qualifying
offense. See U.S.S.G. § 4B1.1. A qualifying offense is either a
“controlled substance offense” or a “crime of violence.” Id.
Curtis concedes that in 1998 he was convicted of a controlled
substance offense. But he contends his felony conviction for
promoting prostitution of a minor in violation of N.J. Stat. Ann.
§ 2C:34-1(b)(3) was not a crime of violence.
The Guidelines define a “crime of violence” as:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that –
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
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(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another.
U.S.S.G. § 4B1.2(a). In determining whether an offense is a
crime of violence, we evaluate the statutory definition of the
crime without considering the particular facts underlying the
defendant’s conviction. See United States v. Hill, 131 F.3d
1056, 1062 (D.C. Cir. 1997).
Since use of force is not an element of the New Jersey
offense, the question is whether promoting prostitution of a
minor “involves conduct that presents a serious potential risk of
physical injury to another.” We conclude it does, as has the
other circuit to have decided the issue. See United States v.
Carter, 266 F.3d 1089, 1091 (9th Cir. 2001); see also United
States v. Battley, 2000 WL 1568149, at *1 (5th Cir. Sept. 11,
2000) (non-precedential decision). It is common knowledge,
confirmed in this case through expert testimony, that prostitutes
risk serious physical harm from customers and from their pimps.
A child prostitute is particularly vulnerable to such violence. In
addition, a pimp is complicit in the sex offense of the customer,
and courts have universally recognized that sex offenses against
minors are crimes of violence under the career offender
provision because of the substantial likelihood that the
perpetrator will use physical force to ensure the child’s
compliance. See, e.g., United States v. Pereira-Salmeron, 337
F.3d 1148, 1155 (9th Cir. 2003) (carnal knowledge with a child
under 15); United States v. Pierce, 278 F.3d 282, 289 (4th Cir.
2002) (taking indecent liberties with a minor); United States v.
Campbell, 256 F.3d 381, 396-97 (6th Cir. 2001) (incest with a
child between 13 and 16 years old); United States v. Coronado-
Cervantes, 154 F.3d 1242, 1244-45 (10th Cir. 1998) (sexual
contact with a minor); United States v. Meader, 118 F.3d 876,
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885 (1st Cir. 1997) (statutory rape of a child under 14); United
States v. Kirk, 111 F.3d 390, 395 (5th Cir. 1997) (indecency
with a child involving sexual contact); United States v. Shannon,
110 F.3d 382, 387-89 (7th Cir. 1997) (en banc) (sexual
intercourse with a 13-year-old). The district court therefore
correctly treated Curtis as a career offender.
Affirmed.