United States v. Kevin Fuertes

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4755

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v.

KEVIN GARCIA FUERTES, a/k/a Kerlin Esquivel−Fuentes, a/k/a
Flaco,

Defendant − Appellant.

No. 13-4931

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v.

GERMAN DE JESUS VENTURA, a/k/a Chino, a/k/a Chalo, a/k/a
Pancho, a/k/a Chaco, a/k/a Oscar,

Defendant − Appellant.

Appeals from the United States District Court for the District
of Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:10−cr−00770−WDQ−2; 1:10−cr−00770−WDQ−1)

Argued: May 13, 2015 Decided: August 18, 2015
Before KING and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.

No. 13-4755 affirmed; No. 13-4931 affirmed in part and vacated
and remanded in part by published opinion. Senior Judge Davis
wrote the opinion, in which Judge King and Judge Keenan joined.

ARGUED: Nicholas J. Vitek, VITEK LAW LLC, Baltimore, Maryland;
Michael Daniel Montemarano, MICHAEL D. MONTEMARANO, P.A.,
Columbia, Maryland, for Appellants. Sujit Raman, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, P. Michael
Cunningham, Rachel M. Yasser, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.

2
DAVIS, Senior Circuit Judge:

These appeals arise from the prosecution of two members of

an enterprise engaged in interstate prostitution. Following a

two-week trial, a jury convicted Appellants Kevin Garcia Fuertes

(“Fuertes”) and German de Jesus Ventura (“Ventura”) of

conspiracy to commit, and commission of, a number of sex

trafficking and related offenses. On appeal, Fuertes and

Ventura make four assertions of error, two individually and two

jointly, regarding evidentiary rulings, jury instructions, and

the sufficiency of the evidence. For the reasons stated below,

we affirm the Fuertes judgment in No. 13-4755. In Ventura’s

appeal, No. 13-4931, applying plain error review, we conclude

that the conviction under 18 U.S.C. § 924(c) for possession and

use of a firearm in relation to a crime of violence was

erroneous because, we hold, sex trafficking by force, fraud, or

coercion, in violation of 18 U.S.C. § 1591(a), is not

categorically a crime of violence. Accordingly, we vacate the

conviction on Count Seven and remand for entry of judgment of

acquittal on that count but we otherwise affirm the Ventura

judgment.

I.

A.

The trial evidence was amply sufficient to permit the jury

to find the following facts.

3
 By early 2008, Ventura was operating brothels in the

Hispanic community in Annapolis, Maryland. Fuertes helped

Ventura run the brothels, as well as advertise the prostitution

business. To maintain control over the sex trade, Fuertes and

Ventura threatened perceived competitors with violence. For

example, in March 2008, Ventura told Alberto Hernandez Campos

(“Campos”) about trouble he was having with another Annapolis-

area pimp, Ricardo Humberto “el Pelon” Rivas Ramirez

(“Ramirez”). Then, to emphasize the seriousness of the matter,

Fuertes showed Campos a handgun. 1

Following this encounter, on September 13, 2008, Ramirez

was murdered. Investigators learned that Ramirez had received

threatening phone calls from two different phone numbers (one

phone number ending in 5015, the other in 1397) some time prior

to his murder. Police sought subscriber information for the two

phone numbers, and entered them into a database for future

investigative purposes.

On September 24, 2008, Fuertes was arrested following an

unrelated traffic violation. When he provided booking

information, Fuertes gave a phone number that matched the 5015

1
Ventura’s operation also adversely affected individuals
who happened simply to live in close proximity to the brothels.
One family began receiving threatening phone calls and had their
home and car vandalized after offering assistance to one of
Ventura’s prostitutes.

4
number from which Ramirez had received threatening phone calls.

Fuertes was arrested again the next day, this time on an open

warrant. At the time of this arrest, Fuertes had in his

possession a cellular phone with the 5015 number, as well as

business cards advertising prostitution services.

After his September 25 arrest, Fuertes consented to a

search of his home in Annapolis, where officers found evidence

that the residence was being used as a brothel. In the living

room, investigators found a cellular phone, which an occupant of

the house permitted them to examine. The contacts list

contained the 1397 number from which Ramirez had received

threatening calls. Police also located a physical address book,

which listed two phone numbers for “Pancho”: the 1397 number, as

well as another number ending in 0903. After obtaining a

warrant, police learned that Ventura was listed as the

subscriber for the phone number ending in 0903. Witnesses in

the investigation eventually identified Ventura by the

aliases/nicknames of “Pancho” and “Chino,” among others.

Suspecting that Ventura and Fuertes were responsible for

Ramirez’s murder, investigators continued to monitor their

activities. Agents learned that Ventura operated brothels at

several locations in Annapolis, as well as in Easton, Maryland

and Portsmouth, Virginia. Ventura arranged for prostitutes to

work in the brothels from Monday through Sunday. Typically, the

5
women communicated with Ventura by phone, then traveled by bus

to Washington, D.C., where they met Ventura, or one of his

employees, and drove to the brothel where they worked for the

week. The prostitutes provided fifteen minutes of sex for

thirty dollars, and were paid half of the gross receipts, less

expenses for food, hygiene products, and other expenses of the

trade. One woman, Margarita Santiago Laona, testified that she

spoke with Ventura by telephone while she was in New Jersey, and

then traveled by bus to Washington, D.C., where he met her and

took her to a nearby brothel.

Rebeca Duenas Franco (“Duenas”), another woman employed by

Ventura, had a particularly violent history with him. On the

one hand, he helped extricate her from the control of another

pimp. He also had a relationship with Duenas—indeed, she

believes he is the father of her son—and provided her with a

place to live. On the other hand, Ventura compelled Duenas to

engage in prostitution by violence and threats of violence, and

held her against her will. Ventura reintroduced Duenas to

prostitution by giving her a box of condoms, telling her to “go

to work,” and beating her “several times” when she resisted.

J.A. 1186. On one occasion, when Duenas refused to have sex

with an African-American client, Ventura beat her with a belt.

On another occasion, when Duenas refused to perform a sex act

6
with an object, Ventura pushed her down onto rocky ground. 2

Ventura also discharged a gun in her presence. Unlike other

women working for Ventura, Duenas did not receive any money from

her services as a prostitute.

At trial, Duenas testified that Ventura threatened

competitor pimps, including Ramirez, and that she witnessed

Ventura and Fuertes celebrating Ramirez’s murder. Duenas also

recounted an incident when Ventura assaulted a male employee who

threatened to go to the police. During another incident,

Ventura beat a prostitute who he believed had sent people to rob

one of his brothels. According to Duenas, Fuertes was present

when Ventura beat the prostitute, as well as at least one

occasion when Ventura beat her. 3

On March 25, 2009, police again arrested Fuertes at an

apartment in Annapolis, and found evidence that the residence

was being used as a brothel. During a protective sweep, police

found Duenas and another woman hiding in a bedroom closet.

2
During the trial, Dr. Mary-Theresa Baker, a physician of
twenty-five years and then-director of the Baltimore Child Abuse
Center, testified about her forensic medical examination of
Duenas. Dr. Baker testified that Duenas’ explanations as to how
she received certain injuries were generally consistent with her
own observations during the examination.

3
On direct examination, Duenas indicated that Fuertes was
at the house when Ventura beat her with a belt. But, on
redirect, she clarified that Fuertes had in fact witnessed the
beating.

7
Meanwhile, a search of Fuertes revealed $696 in cash, a wallet

with miscellaneous papers, including a piece of paper listing

the 0903 phone number associated with Ventura, and a cellphone.

Following his 2009 arrest, Fuertes relocated to Virginia because

he had been entered into deportation proceedings by the

Department of Homeland Security.

On September 24, 2009, police arrested Ventura in Annapolis

on an open warrant from the District of Columbia. A search of

Ventura revealed $859 in cash and documents detailing how many

customers each prostitute had serviced in the past week.

Ventura also had his Maryland driver’s license, a Mexican

license that featured his picture but a different name, and two

cell phones. Despite having two cell phones on his person,

Ventura told the police that he did not have a phone number. He

claimed that he had found one cell phone at the mall, and that

he was borrowing the other from a taxicab driver whose name he

did not know. A later search revealed that one of the phones

had the 0903 number.

Months later, on February 17, 2010, Annapolis police

responded to a 911 call for a possible robbery. The call came

from a phone number which, police eventually learned, was the

number Ventura used after his 2009 arrest. The police located

the site of the robbery, which turned out to be another brothel

operated by Ventura. Maximilliano Zelaya Repalo, a former

8
employee of Ventura, testified at trial that he committed the

robbery because he had not been paid for his work at the

brothel.

In May 2010, police discovered that Ventura was operating

another brothel in Easton. On July 7, 2010, they executed a

search warrant at the brothel and arrested two individuals who

were working there. Law enforcement continued its

investigation, and on August 2, 2010, learned that Ventura was

transporting a prostitute from Maryland to a brothel in

Portsmouth.

Back in Annapolis, on November 3, 2010, several men

believed to be operating at Ventura’s behest seriously assaulted

competitor-pimp Hector Fabian Avila. Law enforcement,

therefore, decided to bring its investigation to a close, and on

November 15, 2010, arrested Ventura in his home. Fuertes was

also charged but was not arrested at that time.

B.

On November 29, 2011, a federal grand jury returned a

superseding indictment, charging Fuertes and Ventura with

conspiracy to transport an individual in interstate commerce for

the purpose of prostitution, in violation of 18 U.S.C. § 371

(Count One); transportation of individuals in interstate

commerce for the purpose of prostitution, in violation of 18

U.S.C. § 2421 (Count Two); and sex trafficking by force, fraud,

9
or coercion, in violation of 18 U.S.C. § 1591(a) (Count Six).

Ventura was also separately charged with coercing or enticing an

individual to travel in interstate commerce for the purpose of

prostitution, in violation of 18 U.S.C. § 2422(a) (Count Three);

transportation of individuals in interstate commerce for the

purpose of prostitution, in violation of 18 U.S.C. § 2421

(Counts Four and Five); and possession and use of a firearm in

relation to a crime of violence—namely, sex trafficking by

force, fraud, or coercion—in violation of 18 U.S.C. § 924(c)

(Count Seven).

After the district court denied most of their pretrial

motions, Fuertes and Ventura proceeded to trial. The jury found

Ventura guilty of all counts and Fuertes guilty of Count One and

that part of Count Six based on events occurring subsequent to

December 24, 2008. It found Fuertes not guilty of Count Two.

The district court denied Fuertes and Ventura’s post-trial

motions for judgment of acquittal or a new trial, and sentenced

Ventura to 420 months’ imprisonment and Fuertes to 235 months’

imprisonment. These timely appeals followed.

II.

A.

Fuertes and Ventura contend that the district court erred

in admitting evidence of violent acts and threats of violence

against competitor pimps because: (1) such evidence was offered

10
for no purpose other than to establish their bad character; (2)

the evidence was not relevant, as it did not make it more likely

that they actually committed the sex trafficking offenses for

which they were charged; and (3) even if the evidence was

relevant, its probative value was far outweighed by the danger

of unfair prejudice. We disagree.

Rule 404(b) of the Federal Rules of Evidence “prohibits

evidence of ‘other crimes, wrongs, or acts’ solely to prove a

defendant’s bad character, but ‘[s]uch evidence . . . may be

admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.’” United States v. Byers, 649

F.3d 197, 206 (4th Cir. 2011) (quoting United States v. Basham,

561 F.3d 302, 326 (4th Cir. 2009)). The rule is “inclusive,”

“admitting all evidence of other crimes or acts except that

which tends to prove only criminal disposition.” United States

v. Young, 248 F.3d 260, 271–72 (4th Cir. 2001) (internal

quotation marks omitted). To be admissible under Rule 404(b),

the proffered “bad acts” evidence must be “relevant to an issue

other than character,” “necessary to prove an element of the

crime charged,” “reliable,” and its “probative value must not be

substantially outweighed by its prejudicial nature.” United

States v. Rooks, 596 F.3d 204, 211 (4th Cir. 2010) (quoting

United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997)). The

11
district court’s decision to admit the evidence is reviewed for

abuse of discretion. United States v. Forrest, 429 F.3d 73, 79

(4th Cir. 2005).

Applying the above standard, the district court did not

abuse its discretion in admitting evidence of violent acts and

threats of violence against competitor pimps. The evidence was

relevant to Fuertes and Ventura’s familiarity with the

prostitution business, as well as their intent to participate in

that business. In other words, Fuertes and Ventura’s attempts

to intimidate or eliminate others involved in the sex

trafficking business constituted evidence of their own

participation in that very business, and that they knowingly

conspired with each other to do so. Likewise, evidence that

Ventura intimidated a family that had attempted to help a

prostitute tended to establish Ventura’s connection to the

prostitute, the brothel at which she worked, the prostitution

business generally, and the underlying conspiracy out of which

the business thrived.

Central to Appellants’ assertion of error is their argument

that evidence of their violent acts and threats was

“unnecessary” to prove any element of the Count One conspiracy

charge. This argument is misplaced. As explained by the

district court, to find Fuertes and Ventura guilty of

conspiracy, the jury had to find at least one overt act was

12
committed in furtherance of the charged conspiracy. And among

the overt acts charged in the superseding indictment were

violent acts and threats of violence against competitors. In

particular, Count One alleged that, as part of the conspiracy,

Fuertes and Ventura “threatened to use and used violence against

those also engaged in prostitution activities within Maryland.”

J.A. 38–39. Count One further alleged that, as part of the

conspiracy, Ventura “claimed responsibility for the murder of

multiple competitor pimps in order to intimidate competitor

pimps and his own employees and female prostitutes.” J.A. 39.

Finally, although the above-described evidence of violent

acts and threats may have been highly incriminating, Fuertes and

Ventura proffer no convincing reason why it was unreliable (and

thus lacking in probative force) or unfair. In light of the

substantial evidence that Fuertes and Ventura forced Duenas—a

young woman illegally present in the country with no English

skills and a third-grade education—into prostitution, there was

no “genuine risk” that the jury would be excited to “irrational

behavior” over threats of violence and acts of violence against

less sympathetic competitor pimps. United States v. Hodge, 354

F.3d 305, 312 (4th Cir. 2004). The evidence of threats and acts

of violence was no more “sensational or disturbing” than the sex

trafficking crimes with which Fuertes and Ventura were charged.

See Byers, 649 F.3d at 210 (“Generally speaking, ‘bad acts’

13
evidence, admissible under Rule 404, is not barred by Rule 403

where such evidence ‘did not involve conduct any more

sensational or disturbing than the crimes with which [the

defendant] was charged.’” (quoting United States v. Boyd, 53

F.3d 631, 637 (4th Cir. 1995)). Thus, in sum, the district

court’s decision to admit the evidence of violence and threats

of violence against competitor pimps was neither legally

erroneous nor an abuse of discretion. 4

4 In finding no reversible error in the district court’s
admission of the evidence, we need not delve into the
intrinsic/extrinsic inquiry advocated by the government at oral
argument. The government asserted during argument that, because
violent acts and threats of violence were charged as overt acts
in the superseding indictment, they were “intrinsic” to the
Count One conspiracy charge and for that reason alone were
admissible. When questioned about what, if any, judicially
enforceable limitation existed on the government’s ability to
include overt acts in a proposed indictment, the government
pointed to the Grand Jury Clause of the Constitution’s Fifth
Amendment, while defense counsel pointed to the Due Process
Clause of that same amendment. As an overt act in furtherance
of a conspiracy under 18 U.S.C. § 371 need not be alleged in an
indictment, see United States v. Janati, 374 F.3d 263, 270 (4th
Cir. 2004), it would be a strange rule of law that authorized a
district court to exclude such evidence upon objection at trial
only if it were not included in an indictment and thereby
“approved” by the grand jury.
At all events, the intrinsic/extrinsic inquiry has ventured
far from where it began. See Milton Hirsch, “This New-Born Babe
an Infant Hercules”: The Doctrine of “Inextricably Intertwined”
Evidence in Florida’s Drug Wars, 25 Nova L. Rev. 279, 280 (2000)
(“[U]ntil about the year 1980, no one thought that evidence of
uncharged crimes could be rendered admissible by the simple
expedient of describing it as ‘inextricably intertwined’ with
evidence of the crime or crimes actually pleaded in the
indictment.”). As pointed out by the D.C. Circuit, “it cannot
be that all evidence tending to prove the crime is part of the
(Continued)
14
 B.

Fuertes and Ventura argue that the district court erred in

permitting Dr. Baker to testify because: (1) her training and

experience were almost entirely with juveniles; and (2) she did

not provide an expert opinion but instead simply attempted to

bolster Duenas’ credibility concerning the source of the

latter’s injuries. They are incorrect.

Rule 702 of the Federal Rules of Evidence provides that

“[a] witness who is qualified as an expert by knowledge, skill,

crime. If that were so, Rule 404(b) would be a nullity.”
United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000).
Yet, by characterizing evidence as “intrinsic,” federal courts,
including this one, have allowed prosecutors to introduce
evidence of uncharged bad acts free from Rule 404(b)’s
protections, including limiting jury instructions and advanced
notice of the government’s intent to introduce the evidence.
Fortunately, some courts have begun to recognize the harm caused
by granting federal prosecutors such unmitigated leeway. See
United States v. Gorman, 613 F.3d 711, 719 (7th Cir. 2010)
(abandoning the “inextricable intertwinement doctrine” because
it “has outlived its usefulness” and “become overused, vague,
and quite unhelpful”); United States v. Green, 617 F.3d 233, 248
(3d Cir. 2010) (“[T]he inextricably intertwined test is vague,
overbroad, and prone to abuse, and we cannot ignore the danger
it poses to the vitality of Rule 404(b).”); Bowie, 232 F.3d at
927 (“[I]t is hard to see what function this
[intrinsic/extrinsic] interpretation of Rule 404(b) performs.”);
see also United States v. Irving, 665 F.3d 1184, 1215 (10th Cir.
2011) (Hartz, J., concurring) (stating that “the
intrinsic/extrinsic dichotomy serves no useful function and
consumes unnecessary attorney and judicial time and effort,” and
that “the distinction between intrinsic and extrinsic evidence
is unclear and confusing, and can lead to substituting
conclusions for analysis”).

15
experience, training, or education may testify in the form of an

opinion or otherwise if”:

(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;

(b) the testimony is based on sufficient facts or
data;

(c) the testimony is the product of reliable
principles and methods; and

(d) the expert has reliably applied the principles and
methods to the facts of the case.

Fed. R. Evid. 702. Where, as here, the expert testimony is of a

scientific nature, the district court serves, in essence, as

gatekeeper, admitting the testimony where it “‘is not only

relevant, but reliable.’” United States v. Crisp, 324 F.3d 261,

265 (4th Cir. 2003) (quoting Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579, 589 (1993)).

The district court must exclude “expert testimony related

to matters which are obviously . . . within the common knowledge

of jurors.” United States v. Lespier, 725 F.3d 437, 449 (4th

Cir. 2013) (internal quotation marks omitted). Thus, absent

“unusual circumstances,” the district court must exclude expert

testimony on issues of witness credibility. Id. The district

court’s decision to admit expert testimony is reviewed for abuse

of discretion. See United States v. Johnson, 617 F.3d 286, 292

(4th Cir. 2010).

16
 Applying the above standard, the district court did not

abuse its discretion in permitting Dr. Baker, who had ample

knowledge, skill, experience, training, and education with

regard to cutaneous findings of abuse, to testify as an expert.

A physician for twenty-five years, Dr. Baker served as the

director of the Baltimore Child Abuse Center, where she

performed complete medical examinations and collected forensic

evidence for alleged cases of child abuse in Baltimore City.

Dr. Baker explained that, during a forensic examination, she

focuses particularly on cutaneous findings (the most common type

of child abuse findings), and that when she discovers an injury

to the skin, she can draw certain conclusions about the possible

source or cause of the injury. Dr. Baker further testified that

she had examined more than 3,000 individuals where there was a

concern of possible past injury, and trained pediatric

residents, nurse examiners, and staff doctors on how to perform

forensic examinations. Finally, Dr. Baker testified that she

had been qualified to testify as an expert in over two dozen

cases, including cases in the District of Maryland.

Fuertes and Ventura take issue with the fact that Dr.

Baker’s “experience was almost entirely with juveniles,” and

that her “training and experience were not in the formation and

treatment of adult scars.” Defs.’ Br. at 47. But, as explained

by Dr. Baker, “[o]ther than the extreme,” such as “very old

17
people [who] have fragile skin” and “very young children [who]

are particularly prone [to] . . . things that can be mistaken

for abuse,” there is no distinction between adults and children

when it comes to cutaneous findings. J.A. 1388. In any event,

Fuertes and Ventura’s objection to Dr. Baker’s training and

experience goes to the weight, not the admissibility, of her

testimony, and counsel had the opportunity to cross-examine her

on these issues. See Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir.

1993) (“The witness’ qualifications to render an expert opinion

are [] liberally judged by Rule 702.”). Likewise, Fuertes and

Ventura’s critique that Dr. Baker could not testify about when

Duenas sustained her injuries was appropriate fodder for cross-

examination. The fact that Dr. Baker could not reach a

conclusion as to when Duenas was injured did not render the rest

of her testimony unhelpful or inadmissible.

Turning to Fuertes and Ventura’s argument that Dr. Baker

merely provided an opinion as to whether Duenas was telling the

truth, this argument must be rejected. Dr. Baker neither opined

on Duenas’ credibility, nor offered an opinion as to who caused

her injuries. Cf. Scott v. Sears, Roebuck & Co., 789 F.2d 1052,

1054–56 (4th Cir. 1986) (determining that the district court

erred in admitting expert testimony on “human factors”).

Rather, Dr. Baker’s testimony was offered to assist the jury in

determining whether there were signs and markings that Duenas

18
had been physically injured. While Dr. Baker’s testimony tended

to corroborate Duenas’ account of how she sustained her injuries

(i.e., being hit with a belt or being pushed down onto rocky

ground), the mere fact that expert testimony tends to

corroborate the testimony of another witness is not grounds for

exclusion; indeed, it is surely the case that most expert

opinion evidence proffered by litigants is paired with lay

evidence that is in some fashion supported by the expert

opinion. E.g., United States v. Gonzales–Flores, 701 F.3d 112,

115 (4th Cir. 2012) (testimony of confidential informant in drug

trafficking prosecution corroborated by forensic expert); Barbe

v. McBride, 521 F.3d 443, 461 (4th Cir. 2008) (“[T]he

prosecution utilized its expert evidence to corroborate J.M.’s

trial testimony and thus buttress the allegation that Barbe had

indeed sexually abused her.”). Thus, the district court’s

decision to admit Dr. Baker’s expert opinion testimony was

neither erroneous nor an abuse of discretion.

C.

Ventura asserts that the district court erred in denying

his motion for judgment of acquittal with respect to Count

Seven, possession and use of a firearm in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c). He claims that

sex trafficking by force, fraud, or coercion, in violation of 18

U.S.C. § 1591(a), which served as the predicate offense for his

19
§ 924(c) conviction, is not categorically a crime of violence.

We agree.

1.

As a preliminary matter, we must determine which standard

of review applies. Ventura asserts that de novo review is

appropriate in light of his general Rule 29 motion for judgment

of acquittal. See United States v. Green, 599 F.3d 360, 367

(4th Cir. 2010) (stating that the court reviews de novo the

district court’s denial of a motion for judgment of acquittal

pursuant to Rule 29 of the Federal Rules of Criminal Procedure).

He argues that a “broadly stated” motion for judgment of

acquittal is “sufficient to preserve the full range of

challenges, whether stated or unstated, to the sufficiency of

the evidence.” United States v. Hammoude, 51 F.3d 288, 291

(D.C. Cir. 1995). And, here, because sex trafficking by force,

fraud, or coercion can never satisfy § 924(c)(3)’s definition of

a crime of violence, there is insufficient evidence to support

his conviction on Count Seven.

The government, however, points out, correctly we think,

that Ventura’s objection is not about factual or evidentiary

sufficiency; rather, his argument is a purely legal one. As

explained by the government, Ventura takes issue with the

district court’s instruction to the jury regarding Count Seven—

in particular, its instruction that sex trafficking by force,

20
fraud, or coercion is categorically a crime of violence. And,

because Ventura neither objected to the instruction nor argued

that Count Seven is not categorically a crime of violence, his

claim may be reviewed only for plain error. See, e.g., United

States v. Tillery, 702 F.3d 170, 175 (4th Cir. 2012) (“Because

[the defendant] did not object to the jury instructions at

trial, we review the instructions for plain error.”).

The government’s analysis is the correct one. Ventura’s

motion for judgment of acquittal, which dealt only with the

sufficiency of the evidence, did not preserve a purely legal

challenge to the jury instruction regarding Count Seven.

Accordingly, to prevail on appeal, Ventura must show: (1) there

was an error; (2) the error was “clear or obvious, rather than

subject to reasonable dispute;” (3) “the error affected [his]

substantial rights, which in the ordinary case means it affected

the outcome of the district court proceedings;” and (4) “the

error seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings.” United States v. Marcus,

560 U.S. 258, 262 (2010) (internal quotation marks omitted).

2.

To sustain a conviction under 18 U.S.C. § 924(c), the

government must prove that the defendant (1) used or carried a

firearm and (2) did so during and in relation to a “crime of

violence.” Section 924(c)(3) defines a “crime of violence” as

21
“an offense that is a felony and—(A) has as an element the use,

attempted use, or threatened use of physical force against the

person or property of another, or (B) that by its nature,

involves a substantial risk that physical force against the

person or property of another may be used in the course of

committing the offense.” 18 U.S.C. § 924(c)(3). Section

924(c)(3)(A) is referred to as the “force clause,” while section

924(c)(3)(B) is called the “residual clause.”

In determining whether an offense qualifies as a “crime of

violence” under either clause, the court may (depending on the

features of the applicable statute) employ the “categorical

approach” or the “modified categorical approach.” “[T]he

modified approach serves a limited function: It helps effectuate

the categorical analysis when a divisible statute, listing

potential offense elements in the alternative, renders opaque

which element played a part in the defendant’s conviction.”

Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). The

categorical approach, by contrast, applies when the defendant

was convicted of an offense under “an ‘indivisible’ statute—

i.e., one not containing alternative elements.” Id. at 2281.

A statute is indivisible when “the jury need not agree on

anything past the fact that the statute was violated.” Rendon

v. Holder, 764 F.3d 1077, 1085 (9th Cir. 2014). “Any statutory

phrase that—explicitly or implicitly—refers to multiple,

22
alternative means of commission must still be regarded as

indivisible if the jurors need not agree on which method of

committing the offense the defendant used.” Id. Thus, “mere

use of the disjunctive ‘or’ in the definition of a crime does

not automatically render it divisible.” Omargharib v. Holder,

775 F.3d 192, 194 (4th Cir. 2014). “Only when [the] law

requires that in order to convict the defendant the jury must

unanimously agree that he committed a particular substantive

offense contained within the disjunctively worded statute are we

able to conclude that the statute contains alternative elements

and not alternative means.” Rendon, 764 F.3d at 1086 (emphasis

in original). Accordingly, although § 1591(a) refers to

alternative means of commission, it contains a single,

indivisible set of elements, and the categorical approach

applies.

Under the “categorical approach,” the court “look[s] only

to the fact of conviction and the statutory definition of the []

offense.” James v. United States, 550 U.S. 192, 202 (2007)

(internal quotation marks omitted), overruled on other grounds,

Johnson v. United States, 135 S. Ct. 2251 (2015). The court

does not consider the “particular facts disclosed by the record

of conviction.” Id. (internal quotation marks omitted). “The

point of the categorical inquiry is not to determine whether the

defendant’s conduct could support a conviction for a crime of

23
violence, but to determine whether the defendant was in fact

convicted of a crime that qualifies as a crime of violence.”

United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir.

2013) (emphasis in original).

Applying the above test, we consider first whether sex

trafficking by force, fraud, or coercion qualifies categorically

as a crime of violence under the force clause, § 924(c)(3)(A).

It does not. After Descamps, when a statute defines an offense

using a single, indivisible set of elements that allows for both

violent and nonviolent means of commission, the offense is not a

categorical crime of violence. Cf. United States v. Aparicio-

Soria, 740 F.3d 152, 157–58 (4th Cir. 2014) (en banc) (reasoning

that, because the Maryland offense of resisting arrest has a

single and indivisible set of elements that may be committed by

either violent or nonviolent means, it does not qualify

categorically as a crime of violence under U.S.S.G. § 2L1.2, the

reentry Guideline); United States v. Royal, 731 F.3d 333, 341–42

(4th Cir. 2013) (reasoning that, because the Maryland offense of

second-degree assault has an indivisible set of elements that

may be committed by either violent or nonviolent means, it does

not qualify categorically as a “violent felony” under §

924(e)(1)). Accordingly, because § 1591(a) specifies that sex

trafficking by force, fraud, or coercion may be committed

nonviolently—i.e., through fraudulent means—the offense does not

24
qualify as a categorical crime of violence under the force

clause.

Turning to the residual clause, the government suggests

that sex trafficking is categorically a crime of violence under

§ 924(c)(3)(B) because, even where the defendant effects the

offense by means of fraud, there is still a substantial risk of

physical injury from the prostitute’s customers, or johns. 5 This

argument misapprehends the clear language of the residual

clause, which specifies that a felony is a crime of violence

when it, “by its nature, involves a substantial risk that

physical force against the person or property of another may be

used in the course of committing the offense.” 18 U.S.C. §

924(c)(3)(B) (emphasis added). The residual clause makes plain

5
We have considered the parties’ supplemental briefing
following the Supreme Court’s decision in Johnson v. United
States, 135 S. Ct. 2251 (2015). We note that in Johnson, id. at
2557-60, the Supreme Court held unconstitutionally vague the
version of the residual clause set forth in 18 U.S.C.
§ 924(e)(2)(B), but the Court had no occasion to review the
version of the residual clause set forth at 18 U.S.C. §
924(c)(3)(B), the one at issue in this case. The two
formulations, one requiring “conduct that presents a serious
potential risk of physical injury to another,” § 924(e)(2)(B),
the other requiring proof of “a felony . . . that by its nature
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense,” § 924(c)(3)(B), are similarly worded
but not identically so. For the reasons explained in text, we
find it unnecessary in this case to explore whether the Supreme
Court’s invalidation of the former provision applies as well to
the latter provision. See Ashwander v. Tenn. Valley Auth., 297
U.S. 288, 346–48 (1936) (setting forth the principle of
constitutional avoidance).

25
(for all its erstwhile murkiness) that the relevant inquiry is

not whether there is a risk of any person using force in any way

tangentially related to an on-going offense, but rather whether

there is a substantial risk of the defendant doing so.

The government nevertheless relies on United States v.

Willoughby, 742 F.3d 229 (6th Cir. 2014), to argue that the risk

of force need not come from the defendant. In Willoughby, the

Sixth Circuit observed that:

the act of causing a minor to engage in prostitution—
even when the defendant’s act does itself not involve
force—obviously does present a “serious potential risk
of physical injury” to the victim. U.S.S.G. §
4B1.2(a)(2). There is the risk of physical injury
from the sex act itself; the risk of violence from
johns, many of whom . . . are addicted to drugs; and,
not least, the risk of violence from the pimps
themselves.

Id. at 242. But, unlike the present case, Willoughby involved

the more expansive definition of a crime of violence found in

U.S.S.G. § 4B1.2. See id. (explaining that, under U.S.S.G. §

4B1.2, a “crime of violence” includes “any felony that has as an

element the use, attempted use, or threatened use of physical

force against the person of another or 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” (emphasis added) (internal

quotation marks omitted)).

26
 In analyzing identical language to that contained in §

924(c)(3)(B), the Supreme Court has indicated that the relevant

inquiry in determining whether an offense qualifies as a crime

of violence is not simply whether there is a substantial risk of

physical injury. See Leocal v. Ashcroft, 543 U.S. 1, 10–11 &

n.7 (2004) (deciphering the term “crime of violence” under 18

U.S.C. § 16). Rather, the relevant inquiry is whether there is

a substantial risk that the defendant will use physical force

against the victim in completing the crime. Id.; see also

United States v. Serafin, 562 F.3d 1105, 1110 (10th Cir. 2009)

(“[F]or an offense to qualify as a crime of violence under §

924(c)(3)(B), we must ensure the statute proscribes conduct

which not only (1) involves a disregard of a substantial risk of

force against another—which, by itself, would only satisfy the §

4B1.2(a)(2) definition—but also (2) where such risk of force

arises during the course of committing the offense.” (emphasis

added)). Thus, for example, “[a] burglary would be covered

under § 16(b) not because the offense can be committed in a

generally reckless way or because someone may be injured, but

because burglary, by its nature, involves a substantial risk

that the burglar will use force against a victim in completing

the crime.” Leocal, 543 U.S. at 10 (emphasis added). We

conclude, therefore, that the district court erred in

27
instructing the jury that sex trafficking by force, fraud, or

coercion is categorically a crime of violence.

Having determined that the district court erred, we next

consider whether the error was clear or obvious. The government

argues that any error could not have been clear or obvious

because neither this Court nor the Supreme Court has determined

whether sex trafficking qualifies as a crime of violence under §

924(c). Cf. United States v. Wynn, 684 F.3d 473, 480 (4th Cir.

2012) (concluding that, where the court never addressed an issue

and the other circuits were split, “the issue has not been

resolved plainly” (emphasis in original)). Descamps, however,

speaks directly to whether § 1591(a) qualifies categorically as

a crime of violence under § 924(c)’s force clause. Moreover,

despite the government’s argument to the contrary, it is of no

import that Descamps was decided after the jury verdict in this

case. As the Supreme Court has said, “whether a legal question

was settled or unsettled at the time of trial, it is enough that

an error be plain at the time of appellate consideration.”

Henderson v. United States, 133 S. Ct. 1121, 1130 (2013)

(internal quotation marks omitted). It is sufficient, in short,

that the district court’s error as to the force clause is plain

on appeal.

Likewise, the district court’s error was plain as to the §

924(c)(3)(B) residual clause. As stated above, we reject the

28
government’s argument that sex trafficking by force, fraud, or

coercion qualifies as a categorical crime of violence under the

§ 924(c)(3)(B) residual clause because prostitutes face a

substantial risk of physical injury from johns. 6 Given the clear

language of the § 924(c)(3)(B) residual clause, and the Supreme

Court’s analysis in Leocal, the government cannot credibly claim

that the district court lacked controlling authority in

interpreting § 924(c)(3)(B) and deciding whether sex trafficking

by force, fraud, or coercion is categorically a crime of

6
At oral argument, the government did not advance the
position that the typical case of sex trafficking by force,
fraud, or coercion involves a substantial risk that the
defendant will use physical force as a means to commit the
offense. See Oral Argument at 32:42, United States v. Fuertes
(No. 13-4755) (counsel referred the court to legislative
findings when questioned about why the government did not
advance a “typical case” argument). Following argument,
however, the government submitted a letter pursuant to Federal
Rule of Appellate Procedure 28(j), contending that, under the
Eleventh Circuit’s decision in United States v. Keelan, 786 F.3d
865 (11th Cir. 2015), the “ordinary case” of sex trafficking
involves a substantial risk that the defendant will use physical
force. Keelan has no bearing on this case. In Keelan, the
Eleventh Circuit confronted whether 18 U.S.C. § 2422, which
“prohibits knowingly persuading, inducing, enticing, or coercing
a minor to engage in sexual activity,” is categorically a crime
of violence under 18 U.S.C. § 16(b). Id. at 870 (emphasis
added). Critical to the court’s determination that the offense
did so qualify was the fact that the victim was a minor. See
id. at 871 (“We [have] found that [i]n cases involving sex
crimes against minors, . . . there is always a substantial risk
that physical force will be used to ensure a child’s compliance
with an adult’s sexual demands.” (internal quotation marks
omitted)). In any event, we are not persuaded that the ordinary
case of sex trafficking by force, fraud, or coercion involves a
substantial risk that the defendant will use physical force as a
means to commit the offense.

29
violence under that provision. Cf. United States v. Carthorne,

726 F.3d 503, 516–17 (4th Cir. 2013), called into question in

part by Johnson v. United States, 135 S. Ct. 2251, 2560 (2015). 7

Finally, we agree with Ventura that the district court’s

obvious error affected his substantial rights as well as the

fairness, integrity, and public reputation of judicial

proceedings. Ventura cannot be guilty of violating § 924(c),

and yet he received an additional sixty months’ imprisonment for

this offense. “[Five] years of a man’s life is not a trifling

thing.” United States v. Ford, 88 F.3d 1350, 1356 (4th Cir.

1996). We simply cannot “require a man to serve [five]

undeserved years in prison when [we] know[] that the sentence is

improper.” Id. Accordingly, because the district court plainly

erred in instructing the jury that sex trafficking by force,

fraud, or coercion is categorically a crime of violence, we

vacate Ventura’s § 924(c) conviction, and remand for entry of

judgment of acquittal on that count and resentencing.

7 Our opinion in United States v. Carthorne, 726 F.3d 503
(4th Cir. 2013), analyzed the career offender guideline,
U.S.S.G. § 4B1.2(a). Id. at 510. In that guideline, the
Sentencing Commission adopted verbatim the residual clause of
the Armed Career Criminal Act, which the Supreme Court
invalidated as fatally vague under the Fifth Amendment due
process clause. Cf. Johnson, 135 S. Ct. at 2560 (discussing
Carthorne).

30
 D.

Fuertes argues that the district court erred in denying his

motion for judgment of acquittal on Count Six, as there was

insufficient evidence that he knew or recklessly disregarded

that Duenas was coerced or forced to engage in commercial sex

acts. 8 We disagree.

As stated above, we review de novo a district court’s

denial of a motion for judgment of acquittal. Green, 599 F.3d

at 367. “[A]ppellate reversal on grounds of insufficient

evidence . . . will be confined to cases where the prosecution’s

failure is clear.” Id. (internal quotation marks omitted). In

reviewing the sufficiency of the evidence, the relevant question

is whether, viewing the evidence in the light most favorable to

the government, “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id.

(internal quotation marks omitted). Put another way, a

reviewing court “cannot set aside a jury’s verdict if it is

supported by substantial evidence when viewed in the light most

8The district court instructed the jury that Fuertes was
guilty of sex trafficking by force, fraud, or coercion if: (1)
he knowingly recruited, enticed, harbored, transported,
provided, or obtained a person (namely, Duenas) by any means, or
benefitted financially from participation in a venture engaged
in any such act; (2) he knew or recklessly disregarded that
force, fraud, or coercion would be used with respect to Duenas;
(3) he knew that Duenas would be engaged in a commercial sex
act; and (4) his conduct was in or affecting interstate
commerce.

31
favorable to the government.” United States v. Taylor, 659 F.3d

339, 343 (4th Cir. 2011).

Here, a reasonable jury could have found that Fuertes knew

or recklessly disregarded that Duenas was forced or coerced to

commit commercial sex acts. As pointed out by the government,

Fuertes does not dispute “the sufficiency of the evidence of his

participation in the commercial sex enterprise with and on

behalf of Ventura.” Gov’t Br. at 43. Nor does he dispute that

he was present at most, if not all, of the places where Duenas

provided sexual services on behalf of Ventura. Rather, Fuertes

disputes that he witnessed one occasion when Ventura beat her

with a belt. Although Duenas indicated on direct examination

that Fuertes was in the same house (but not necessarily the same

room) when Ventura beat her with a belt, she clarified during

redirect examination that Fuertes had in fact witnessed the

beating. Taking the facts in the light most favorable to the

government, a reasonable trier of fact could have found that

Fuertes witnessed Ventura beating Duenas, and that the beating,

combined with the level of Fuertes’ involvement in Ventura’s

prostitution business, constituted proof beyond a reasonable

doubt that Fuertes knew or recklessly disregarded that Duenas

was coerced or forced into prostitution. Accordingly, we affirm

the district court’s denial of Fuertes’ motion for judgment of

acquittal on Count Six.

32
 III.

For the reasons stated above, the judgment in No. 13-4755

is affirmed; the judgment in No. 13-4931 is affirmed in part and

vacated and remanded in part.

No. 13-4755 AFFIRMED;
No. 13-4931 AFFIRMED IN PART AND
VACATED AND REMANDED IN PART WITH INSTRUCTIONS

33