FILED
JAN 22 2010
NOT FOR PUBLICATION MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-10446
Plaintiff - Appellee, D.C. No. CR-05-00040-KJD
v.
MEMORANDUM *
MARIO WEICKS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted November 2, 2009
San Francisco, California
Before: HAWKINS and THOMAS, Circuit Judges, and KORMAN, ** District
Judge.
Appellant, Mario Weicks, appeals his conviction of two counts of transporting
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
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a minor with intent that she engage in prostitution, 18 U.S.C. § 2423(a), two counts
of traveling in interstate commerce for the purpose of engaging in sex with a minor,
18 U.S.C. § 2423(b), one count of possessing a firearm as a convicted felon, 18 U.S.C.
§ 922(g)(1), and one count of possessing a firearm in furtherance of a crime of
violence, 18 U.S.C. § 924(c). He was sentenced to 420 months imprisonment plus ten
years of supervised release. We affirm Weicks’ conviction but remand to the district
court for resentencing.
I
Under U.S. Sentencing Guidelines (“Guidelines”) § 4B1.1, a defendant is
treated as a career offender if, among other things, “the defendant has at least two
prior felony convictions of either a crime of violence or a controlled substance
offense.” U.S. Sentencing Guidelines § 4B1.1 (2005). Here, the district court applied
the career offender provision, which mandated a Guidelines sentencing range of 360
months to life because one of Weicks’ convictions was for violation of 18 U.S.C.
§ 924(c). Absent application of the career offender provision, Weicks’ Guidelines
offense level would be 30, which would result in a Guidelines sentencing range of 168
to 210 months. The only issue on appeal relating to the career offender sentencing
enhancement is whether his prior conviction for third-degree assault constitutes a
“crime of violence.” The Guidelines define a crime of violence as any offense that,
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inter alia, “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.” U.S. Sentencing Guidelines § 4B1.2
(2005).
In United States v. Sandoval, 390 F.3d 1077 (9th Cir. 2004), we held that
“[u]nder the categorical approach set forth in [Taylor v. United States, 495 U.S. 575
(1990)], third-degree assault in Washington does not qualify as a crime of violence
as that term is defined in United States Sentencing Guideline § 4B1.2,” because it is
possible to commit the offense through an unlawful touching that does not involve
substantial physical force or the serious risk of physical injury. Id. at 1081; see also
State v. Hall, 14 P.3d 884, 889 (Wash. Ct. App. 2000). Consequently, we held that
third-degree assault is not categorically a crime of violence. Sandoval, 390 F.3d at
1081; see also James v. United States, 550 U.S. 192, 208-09 (2007); Gonzalez v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007) (“[T]o find that a state statute creates a
crime outside the generic definition of a listed crime . . . requires a realistic probability
. . . that the State would apply its statute to conduct that falls outside the generic
definition of a crime”).
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Moreover, after examining “the information, plea agreement, and judgment in
the record,” we concluded that they “do not exclude the possibility that Sandoval's
guilty plea to third-degree assault was for conduct that did not involve substantial
physical force and did not seriously risk physical injury.” Id. Accordingly, the prior
guilty plea “did not constitute a crime of violence under either the categorical or the
modified categorical approach, and [thus] Sandoval's sentence was improperly
enhanced.” Id.; see also United States v. Young, 420 F.3d 915, 917-18 (9th Cir.
2005).
The information to which Weicks pled guilty in Washington says nothing about
the conduct underlying the offense. Nor does the plea agreement, pursuant to which
Weicks entered an Alford plea, contain any adequate factual recitations. While the
plea proceeding provides some additional information involving Weicks’ conduct in
the Washington case, the facts to which Weicks admitted were insufficient to satisfy
the modified categorical approach.
On the assumption that Weicks’ attorney’s statement regarding the incident
could be imputed to Weicks himself, it merely constitutes argument based on facts
that were contained in the police report, namely that the arresting officer reported that
Weicks “slapped her wrist,” and that the police report, but not the probable cause
affidavit, indicated he “apparently had shoved himself or his arm back while . . .
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continuing to be arrested and apparently the officer was struck again at . . . that time.”
Nevertheless, the district court could not consider the police report when applying the
modified categorical approach. Shepard v. United States, 544 U.S. at 21-23. Under
these circumstances, it necessarily follows that argument by Weicks’ lawyer based
upon the police report was likewise inadequate to satisfy the modified categorical
approach. Consequently, we need not reach the issue whether Weicks’ conduct, as
described in the police report, constitutes a crime of violence.
II
Weicks makes two arguments with respect to his conviction under 18 U.S.C.
§ 924(c), for use of a firearm in furtherance of a crime of violence. Both are without
merit. Section 924(c) provides that “any person who, during and in relation to any
crime of violence . . . uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall . . . be sentenced to a term of imprisonment of not
less than 5 years.” 18 U.S.C. § 924(c). We have held that 18 U.S.C. § 2423(a), which
makes it a crime to transport a minor across state lines with the intent that she engage
in prostitution, creates a substantial risk that violence may be used to perpetrate the
crime. See United States v. Carter, 266 F.3d 1089, 1091 (9th Cir. 2001). Specifically,
we held that, because prostitution “carried the risk of assault or physical abuse by the
pimp's customers or by the pimp himself,” it was a crime of violence encompassed by
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the Guidelines § 4B1.2. Id. at 1090-91; cf. United States v. Patterson, 576 F.3d 431,
440-42 (7th Cir. 2009); United States v. Williams, 529 F.3d 1, 5-7 (1st Cir. 2008).
Weicks argues that these cases are inapposite because the definition of a crime
of violence under § 4B1.2(a)(2) of the Guidelines is different than that found in
§ 924(c). While the Guidelines define a crime of violence as involving “a serious
potential risk of physical injury to another,” U.S. Sentencing Guidelines
§ 4B1.2(a)(2), § 924(c) requires “a substantial risk that physical force against the
person or property may be used.” 18 U.S.C. § 924(c) (emphasis added). In Valencia
v. Gonzales, we found statutory rape to be a crime of violence, distinguishing between
“substantial risk of physical force” and “serious potential risk of physical injury,” and
concluding that while consent to sexual intercourse renders force unnecessary to
overcome a minor’s resistance, “actual consent . . . [does] not remove the potential
risk of physical injury [due to sexually transmitted disease].” 439 F.3d 1046, 1053
(9th Cir. 2006).
Unlike the crime of statutory rape, the minor’s consent to engage in prostitution
does not alleviate the substantial risk that physical force will be used against the minor
by both the pimp and third party “customers,” as described in Carter. 266 F.3d at
1091; see also Williams, 529 F.3d at 5-7 (noting that the commercial aspect of 18
U.S.C. § 2423(a), as opposed to simple seduction of a minor, increases the level of
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risk to the minor because it increases the risk of physical abuse from multiple
partners); accord Sylvia A. Law, Commercial Sex: Beyond Decriminalization, 73 S.
Cal. L. Rev. 523, 533 n.47 (2000) (noting a “study of 130 street prostitutes in San
Fransisco found that 82% had been physically assaulted, 83% had been threatened
with a weapon, [and] 68% had been raped while working as prostitutes”). Thus, the
act of transporting a minor with the intent that she engage in prostitution is a proper
predicate for Weicks’ 924(c) conviction.
Weicks also challenges his conviction under § 924(c) on the ground that the
firearm, which the evidence established he possessed, was not used “in furtherance”
of a crime of violence. Here, the victim testified at trial that, prior to their first trip to
Las Vegas, Weicks showed her a gun, claiming that it was for her “protection.” The
victim further testified that Weicks said he planned to take the gun with them to Las
Vegas “in case anybody would hurt” her. Weicks’ statement that he intended to use
the gun to protect the victim itself provides a sufficient basis for the jury to have found
that Weicks possessed the gun with a purpose to “promote or facilitate the underlying
crime” of having the victim to prostitute herself for his benefit. United States v.
Krouse, 370 F.3d 965, 967 (9th Cir. 2004).
III
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Weicks makes two arguments with respect to the sufficiency of the evidence
related to the 18 U.S.C. § 2423(b) (illicit sexual conduct) charges. First, he argues
that with respect to Weicks’ second trip to Las Vegas with the victim, the evidence
was insufficient to establish that the sexual conduct with the victim occurred after
Weicks crossed state lines. Weicks also argues that the government had not proven
that there was a sufficient nexus between interstate travel and the criminal sex act.
Our review of the record reveals that Weicks’ arguments lack merit. United States v.
Fox, 425 F.2d 996, 999 (9th Cir. 1970).
IV
Weicks contends that the district court should not have admitted evidence of his
1994 felony conviction for distributing a controlled substance, 1996 third-degree
felony conviction for assault on a police officer, 1998 misdemeanor conviction for
providing false identification to a police officer, a bench warrant resulting from his
failure to appear to face charges related to this case, and two prior arrests for illegal
possession of a firearm. Because, Weicks volunteered testimony regarding each of
these crimes during his direct examination, he may not challenge their admission on
appeal. See United States v. Ohler, 529 U.S. 753, 755 (2000); see also United States
v. Williams, 939 F.2d 721, 725 (9th Cir. 1991).
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Second, the introduction of a bench warrant for Weicks’ failure to appear and
face state charges related to this case was properly allowed by the district court as
relevant evidence of flight. See Marcoux v. United States, 405 F.2d 719, 721 (9th Cir.
1968); see also United States v. Greiser, 502 F.2d 1295, 1299 (9th Cir. 1974). The
state charges filed against Weicks arise out of the same course of conduct for which
Weicks was on trial in federal court. Accordingly, the issuance of a bench warrant for
Weicks’ failure to appear in state court was probative of his guilt regarding that course
of conduct and therefore relevant evidence to this case.
Third, Weicks’ prior arrests for illegal possession of firearms were admissible
because Weicks opened the door for questioning on the matter while testifying. When
asked during cross examination whether he knew that a convicted felon is prohibited
from carrying a firearm, Weicks responded with broad statements indicating that he
did not possess a gun and portrayed himself as someone who avoided being around
firearms. In response, the government sought to introduce Weicks’ two prior arrests
for being a felon in possession of a firearm for the sole purpose of impeaching
Weicks’ volunteered statements. Federal Rule of Evidence 607 allows the admission
of extrinsic evidence to impeach specific errors or falsehoods in a witness' volunteered
testimony. See United States v. Castillo, 181 F.3d 1129, 1132-34 (9th Cir. 1999)
(holding that defendant’s broad denials of drug involvement warranted admission of
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extrinsic evidence of his prior arrest for cocaine possession); but see Michelson v.
United States, 335 U.S. 469, 482 (1948) (stating that a prior arrest, without more,
“does not, in law any more than in reason, impeach the integrity or impair the
credibility of a witness”); United States v. Pennix, 313 F.2d 524, 529 (4th Cir. 1963)
(noting that probative value of prior arrest is “overwhelmingly outweighed by its
inevitable tendency to inflame and prejudice the jury against the defendant”).
Moreover, any error regarding the admissibility of the arrests is harmless
because the evidence of Weicks’ mere arrests was unlikely to have affected the jury’s
decision to discredit his testimony. See United States v. Angwin, 271 F.3d 786, 798
(9th Cir. 2001) (overruled on other grounds by United States v. Lopez, 484 F.3d 1186,
1200 n.17 (9th Cir. 2007).
V
The district court’s exclusion of the victim’s prior conviction for petty larceny
was proper under Federal Rule of Evidence 609(a). See United States v. Glenn, 667
F.2d 1269, 1273 (9th Cir. 1982) (“[T]heft crimes … do not involve dishonesty or false
statement within the meaning of rule 609(a)(2)”) (internal quotations omitted); cf.
United States v. Ortega, 561 F.2d 803, 806 (9th Cir. 1977) (“An absence of respect
for the property of others is an undesirable character trait, but it is not an indicium of
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a propensity toward testimonial dishonesty”). Moreover, even if the evidence could
have been used for purposes of impeachment, during the course of the trial, the jury
heard substantial evidence which rendered that line of questioning cumulative.
VI
Weicks contends that he is entitled to a new trial because the government
improperly commented on his silence and shifted the burden of proof to Weicks
during its closing argument in violation of the Fifth Amendment. Weicks cannot
claim that the prosecutor improperly commented on his failure to testify, because
Weicks did in fact testify on his own behalf. See United States v. Cabrera, 201 F.3d
1243, 1250 (9th Cir. 2000). Moreover, we held in Cabrera that a prosecutor is
permitted to comment on the weakness of the defendant’s case. Id.; see also United
States v. Vaandering, 50 F.3d 696, 701-02 (9th Cir. 1995) (prosecutor may comment
on the defendant’s failure to present exculpatory evidence, provided the comments do
not call attention to the defendant’s failure to testify). The comments here are
analogous. The prosecutor reminded the jury that the government had the burden of
proof and stated that Weicks failed to provide exculpatory evidence to corroborate his
testimony.
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VII
Weicks contends that the district court erroneously held that there was probable
cause to arrest him and that “the arrest and the evidence obtained thereby in violation
of Mr. Weicks' Fourth Amendment and Fourteenth Amendment rights must be
suppressed.” After examining the record in this case, we conclude that there was
probable cause for Weicks' arrest based on the corroborated information provided by
the victim and Weicks' inconsistent and contradictory statements and behavior.
VIII
Weicks contends that the district court improperly considered the fact of
Weicks' prior convictions when imposing sentence. Under Almendarez-Torres v.
United States, 523 U.S. 224 (1998), the district court properly considered Weicks'
prior convictions during sentencing.
CONCLUSION
Based on the foregoing, we affirm the judgment of conviction and remand for
resentencing.
AFFIRMED in Part; VACATED and REMANDED in Part.
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