NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 8, 2014
Decided September 15, 2014
Before
WILLIAM J. BAUER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐2971
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 10 CR 927
ERIK SHAMSUD‐DIN,
Defendant‐Appellant. Amy J. St. Eve, Judge.
O R D E R
Erik Shamsud‐Din challenges the 180‐month sentence he received after he
transported girls, including at least one minor, in interstate commerce for the purpose of
prostitution. We find no clear error in the imposition of a vulnerable victim enhancement
because Shamsud‐Din knowingly preyed on a victim’s fear of a man who had been
harming her. We also find any error in imposing a “use of a computer” enhancement based
on Shamsud‐Din’s use of a cell phone to be harmless, as the district court made very clear
No. 13‐2971 Page 2
that it would have imposed the same sentence regardless of whether the enhancement was
proper. We affirm Shamsud‐Din’s sentence.
I. BACKGROUND
At the age of fifteen, Victim A ran away from a foster home in Minnesota and met
a man whom the government calls “Individual A.” He told Victim A he would be her
boyfriend and would take care of her, and he bought her a bus ticket to California. But
upon her arrival in California, Individual A required Victim A to work as a prostitute for
him. With no money and no other options, Victim A did so and gave him all the money she
made. Individual A beat her multiple times while she worked for him.
In December 2006, while at an appointment at a male customer’s house, Victim A
explained her circumstances to her customer, and he drove her to a hotel a few cities away.
There, Victim A met Erik Shamsud‐Din, the defendant. She told him that she had just
escaped from a pimp who had been beating her up. She also told Shamsud‐Din she was
sixteen years old. After she explained her circumstances, Shamsud‐Din offered that Victim
A could begin working as a prostitute for him instead of for Individual A. Relieved because
she thought Shamsud‐Din could protect her from Individual A, Victim A gave Shamsud‐
Din the rest of the money she had with her and began working for him that evening.
Within a few days, Shamsud‐Din began taking Victim A, along with Victims B and
C, to various cities across the United States to engage in sex acts for money. When the
group arrived in a new town, Shamsud‐Din posted advertisements for the girls’ sexual
services on Craigslist and other websites. He communicated with Victim A by cell phone
about travel to locations for purposes of prostitution. He drove her to appointments and
communicated with her by cell phone to arrange where she should be dropped off and
picked up. Victim A gave Shamsud‐Din all the money she earned from prostitution and
relied on him to buy her food and other necessities. Shamsud‐Din, forty years old at the
time, also had sex with Victim A two or three times a week during this time.
Shamsud‐Din pled guilty to two counts of transporting Victim B in interstate
commerce with the intent that she engage in prostitution, in violation of 18 U.S.C. § 2421.
He stipulated in the plea agreement to the additional offense of knowingly transporting
Victim A, a minor, across state lines to engage in prostitution, in violation of 18 U.S.C.
§ 2423(a). Victim A, twenty‐three years old at the time of the sentencing hearing, testified
at the sentencing hearing about her experiences with Shamsud‐Din and the traumatic
effects they had on her.
No. 13‐2971 Page 3
After hearing Victim A’s testimony and considering the parties’ arguments, the
district court denied the government’s request for an undue influence enhancement but
applied vulnerable victim and use of a computer enhancements. The resulting advisory
range under the United States Sentencing Guidelines was 135 to 168 months’
imprisonment. The district court imposed a sentence of 180 months’ imprisonment and
explained that it would impose the same sentence even if the advisory guidelines were
incorrectly calculated. Shamsud‐Din appeals his sentence.
II. ANALYSIS
A. Vulnerable Victim Enhancement
Shamsud‐Din first contends that he should not have received a vulnerable victim
enhancement. The United States Sentencing Guidelines provide for a two‐level
enhancement if the defendant knew or should have known that a victim of the offense was
a vulnerable victim. U.S.S.G. § 3A1.1(b)(1). A “vulnerable victim” under the Guidelines is
one who is a victim of the offense of conviction or any relevant conduct and “who is
unusually vulnerable due to age, physical or mental condition, or who is otherwise
particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1(b)(1) cmt. n.2. We review
the district court’s application of the vulnerable victim enhancement for clear error. United
States v. Christiansen, 594 F.3d 571, 574 (7th Cir. 2010).
In concluding that the vulnerable victim enhancement was warranted, the district
court stated:
The victim here clearly conveyed to the defendant the fact that she did not
have a stable place to live; that she did not have a lot of money left; that she
was a runaway; and, in addition, in making it significant here, is the fact that
she conveyed to the defendant—and this had nothing to do with her age, nor
did the other factors, that she conveyed to the defendant—that she was afraid
of the prior relationship she had; and, that Individual A was preying on her
and had beaten her up and she feared him. And the defendant offered his
“protection” to her and he took advantage of that.
Shamsud‐Din makes several arguments as to why, in his view, the vulnerable victim
enhancement was wrongly applied. For one, he contends that Victim A’s runaway status
was too closely related to her age to support the enhancement. The vulnerable victim
enhancement is not appropriate if the factor that makes the person vulnerable is already
No. 13‐2971 Page 4
incorporated in the offense guideline. U.S.S.G. § 3A1.1(b)(1) cmt. n.2. Shamsud‐Din’s
offense level had been calculated based upon a guideline that was limited to crimes against
minors. See U.S.S.G. § 2G1.3(a)(3). Here, however, the district court specifically stated that
it found Victim A vulnerable for reasons that had nothing to do with her age. Those
reasons included that she was fearful of Individual A and that Shamsud‐Din preyed upon
that fear, as well as that she was homeless and had little money. Because these reasons
were unrelated to Victim A’s age, the fact that she was a runaway does not preclude the
enhancement in this case.
Shamsud‐Din also argues that Victim A’s homelessness, runaway status, and
economic uncertainty cannot form the basis of a vulnerable victim finding because these
factors are “typical” of sex‐trafficking victims and are therefore insufficient to show that
Victim A was “unusually” vulnerable. See U.S.S.G. § 3A1.1(b)(1) cmt. n.2 (defining
“vulnerable victim” as one who is “unusually vulnerable due to age, physical or mental
condition, or who is otherwise particularly susceptible to the criminal conduct”) (emphases
added). Even if that were true, a “significant” reason the district court found Victim A
vulnerable was that she feared Individual A, a man who had physically and mentally
abused her, and that Shamsud‐Din knowingly took advantage of that fear. That fear, and
Shamsud‐Din’s decision to prey on it, means it was not error for the district court to
conclude that Victim A was unusually vulnerable or particularly susceptible.
Shamsud‐Din also briefly challenges the district court’s finding that Victim A feared
Individual A. This is a challenge to a factual finding, so we review it for clear error. See
United States v. Rumsavich, 313 F.3d 407, 411 (7th Cir. 2002). Victim A testified at the
sentencing hearing that Individual A had beaten her up, that she was afraid of him, and
that she hoped Shamsud‐Din could protect her from Individual A. The district court was
well within its discretion to credit her testimony and to believe that Victim A feared
Individual A. We find no error in the decision to impose the vulnerable victim
enhancement.
B. Enhancement for Use of Computer to Facilitate Travel of Minor to Engage
in Prohibited Sexual Conduct
Shamsud‐Din also challenges the two‐level enhancement he received for using a
computer to facilitate the travel of a minor to engage in prohibited sexual conduct. The
guideline at issue, U.S.S.G. § 2G1.3(b)(3), provides:
No. 13‐2971 Page 5
If the offense involved the use of a computer or an interactive computer
service to (A) persuade, induce, entice, coerce, or facilitate the travel of, the
minor to engage in prohibited sexual conduct; or (B) entice, encourage, offer,
or solicit a person to engage in prohibited sexual conduct with the minor,
increase by 2 levels.
The district court imposed this enhancement “given the use of the cell phone to facilitate the
travel of and to facilitate the minor engaging in prohibited sexual conduct.”
We note first that the government does not seek the “use of a computer”
enhancement on the basis of Shamsud‐Din’s placement of advertisements on Craigslist and
other internet websites for Victim A’s sexual services. That is likely because the application
notes to U.S.S.G. § 2G1.3 state that subsection (b)(3), the subsection at issue, “is intended to
apply only to the use of a computer or an interactive computer service to communicate
directly with a minor or with a person who exercises custody, care, or supervisory control
of the minor.” U.S.S.G. § 2G1.3(b)(3) cmt. n.4.
Instead, the government sought and received the enhancement on the basis that
Shamsud‐Din’s use of a cell phone to facilitate Victim A’s travel arrangements constituted
the “use of a computer” under U.S.S.G. § 2G1.3(b)(3). Shamsud‐Din does not dispute that
he used a cell phone to facilitate the travel of a minor to engage in prohibited sexual
conduct. But he maintains a cell phone is not a “computer.” That argument certainly has
intuitive appeal. The mere use of a cell phone to make and receive calls, especially if that cell
phone does not have internet capability (and it is unclear from the record whether the phone
at issue here could access the internet), would not seem to fall within most persons’
understanding of the “use of a computer.” Nonetheless, U.S.S.G. § 2G1.3 directs that
“computer” for purposes of the enhancement has the meaning given the term in 18 U.S.C.
§ 1030(e)(1). See U.S.S.G. § 2G1.3 cmt. n.1. That statute gives “computer” what the district
court rightfully called a “very, very broad” definition:
[T]he term “computer” means an electronic, magnetic, optical, electrochemical,
or other high speed data processing device performing logical, arithmetic, or
storage functions, and includes any data storage facility directly related to or
operating in conjunction with such a device, but such term does not include an
automated typewriter or typesetter, a portable hand held calculator, or other
similar device.
No. 13‐2971 Page 6
18 U.S.C. § 1030(e)(1). We have said in another context that this very, very broad definition
could encompass a cell phone. See United States v. Mitra, 405 F.3d 492, 495 (7th Cir. 2005). The
Eighth Circuit, while acknowledging that “a ‘basic’ cellular phone might not easily fit within
the colloquial definition of ‘computer’” ruled after considering evidence about a defendant’s
cell phone that it was a “computer” for purposes of U.S.S.G. § 2G1.3(b)(3) in light of the
definition set forth in 18 U.S.C. § 1030(e)(1). United States v. Kramer, 631 F.3d 900, 903‐04 (8th
Cir. 2011).
We, however, need not resolve whether the enhancement for use of a computer was
warranted. Procedural errors in computing sentencing guidelines are subject to harmless
error review. United States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009). “A finding of harmless
error is only appropriate when the government has proved that the district court’s
sentencing error did not affect the defendant’s substantial rights (here‐liberty).” Id. We do
not lightly find harmless error regarding a guidelines calculation. We will only find harmless
error if the government demonstrates that any error in calculating the advisory guidelines
range “‘did not affect the district court’s selection of the sentence imposed.’” Id. (citation
omitted).
It is clear in this case that the district court would have imposed the same sentence
even if the use of a computer enhancement was improper. After detailing the reasons for the
sentence chosen, the district court explicitly noted that there had been disagreements
regarding the guideline calculations and stated that even if the guidelines had been
calculated incorrectly, the sentence would not change in light of all the 28 U.S.C. § 3553(a)
factors. As in Abbas, the district court judge gave “a detailed explanation of the basis for the
parallel result; this was not just a conclusory statement tossed in for good measure.” Id. The
district court’s explanation of its sentence was thorough. The judge called the offense “a very
serious, very significant offense” as Shamsud‐Din had exploited minor girls and profited
from them. The district court also pointed to Shamsud‐Din’s history and characteristics, in
particular that he was a repeat sex offender against minors and was dangerous to the
community because of that. The court further noted that Shamsud‐Din had received a
significant sentence for similar activity that had not deterred him. The court also considered
that Shamsud‐Din had been defiant in court on multiple occasions, yelling, and showed
disrespect for the process and for any kind of authority. We conclude that any error in the
imposition of the enhancement would not have affected the district court’s selection of
sentence, so it was harmless.
III. CONCLUSION
The judgment of the district court is AFFIRMED.